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IN THE 

COURT OF SPECIAL APPEALS OF MARYLAND 



SEPTEMBER TERM, 2000 



NO. 923 APR 3 




0 2002 



ADNAN SYED, 

Appellant 

V. 

STATE OF MARYLAND, 

Appellee 



APPEAL FROM THE CIRCUIT COURT 
FOR BALTIMORE CITY 
(Wanda Keyes Heard, Judge) 



BRIEF OF APPELLEE 



J. JOSEPH CURRAN, JR. 
Attorney General of Maryland 

STEVEN L. HOLCOMB 
Assistant Attorney General 

Office of the Attorney General 
Criminal Appeals Division 
200 Saint Paul Place 
Baltimore, Maryland 21202 
(410) 576-6537 

Counsel for Appellee 



TABLE OF CONTENTS 



Page 



STATEMENT OF THE CASE 1 

QUESTIONS PRESENTED 1 

STATEMENT OF FACTS 2 

ARGUMENT: 



1. THERE WAS NO VIOLATION OF BRADY V. 
MARYLAND WHERE SYED WAS ABLE TO 
CROSS-EXAMINE STATE'S WITNESS, JAY 
WILDS, ABOUT ALL RELEVANT ASPECTS 
OF HIS PLEA AGREEMENT AND THE 
MANNER IN WHICH HE OBTAINED THE 



ASSISTANCE OF PRIVATE COUNSEL 15 

A. General Principles 16 

B. There was no Brady violation 
where Syed effectively impeached 
Jay Wilds and elicited all relevant 
information about Wilds's plea 
agreement during five days of 
cross-examination 19 

C. The trial court properly exercised 
discretion in ruling that Syed could 

not call the prosecutor to testify 
regarding the same matters testified 
to by Jay Wilds 33 

D. If preserved, the trial court properly 
denied Syed's motion to strike the 

testimony of Jay Wilds 37 



Page 



E. 



The trial court properly exercised 
discretion in denying Syed's 
motion to compel 



39 



F. The trial court properly exercised 
discretion in denying Syed's 
request to recall Wilds after five 
days of cross-examination, and in 
denying Syed's request to call 

Wild's attorney as a witness 42 

G. The trial court properly denied 
Syed's request to call Elizabeth 
Julian as a witness to testify to the 
process by which a charged 
defendant applies for representation 

from the Public Defender 48 

H. There was no prosecutorial 
misconductin Syed's trial and Syed 
was not prejudiced by any belated 
disclosures of information 
concerning State's witness, Jay 



II. THE TRIAL COURT PROPERLY EXERCISED 
DISCRETION IX PERMITTING A WITNESS 
TO READ A PORTION OF A LETTER 
WRITTEN BY THE VICTIM AND 



IlL IF PRESERVED, THE TRIAL COURT 
PROPERLY EXERCISED DISCRETION IN 
ADMITTING THE VICTIM'S DIARY INTO 



Wilds 



52 



ADDRESSED TO S^'ED 



53 



EVIDENCE 



60 



Page 

CONCLUSION 66 

PERTINENT PROVISIONS 67 

TABLE OF CITATIONS 
Cases 

Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) 52 

Banks v. State, 92 Md. App. 422 (1992) 63, 64 

Best V. State, 79 Md. App. 241, cert, denied, 317 Md. 70 (1989) 59 

Brady V. Maryland, 313 U.S. S3 (1963) 15, passim 

Brown v. State, 359 Md. 180 (2000) 56 

Carlton v. State, 1 1 1 Md. App. 436, cert, denied, 344 Md. 328 (1996) . . 58 

Case V. State, 1 18 Md. App. 279 (1997) 58 

Caviness v. State, 244 Md. 575 (1966) 60 

Conyers v. State, 354 Md. 132 (1999) 55, passim 

Conyers v. State, 367 Md. 571 (2002) 16, 19 

Cook V. State, 1 18 Md. App. 404 (1997), cert, denied, 
349 Md. 234(1998) 65 

Cutchin V. State, _ Md. App. No. 195, Sept. Term, 2001 
(filed March 1,2002) 30 

Davis V. State, 189 Md. 269 (1947) , 60 



iii 



Page 

Dorsey v. State, 276 Md. 638 (1976) 59 

Ebb V. State, 341 Md. 578, cert, denied, 519 U.S. 832 (1996) 29 

Evans v. State, 304 Md 487 (1985), cert, denied, 
478 U.S. 1010(1986) 39 

Farah v. Stout, 112 Md. App. 106 (1996), cert, denied, 
344Md. 567 (1997) 58 

Gaylord v. State, 2 Md. App. 571 (1967) 61 

Grandison v. State, 305 Md. 685, cert .denied, 479 U.S. 873 (1986) .... 38 

Grant v. State, 16 Md. App. 165 (1988), rev*d on other grounds, 
318 Md. 672(1990) 61,63 

Grax V. State, 137 Md. App. 460 (2001), rev'd on other grounds ^ 
_ Md. No. 37, Sept. Term, 2001 (filed April 11, 2002) 57, 58 

Green v. State, 127 Md. App. 758 (1999) 29 

Grier v. State, 351 Md. 241 (1998) 54 

Holland v. State. 122 Md. App. 532, cert, denied, 351 Md. 662 (1998) . . 56 

HoUowav V. State, 26 Md. App. 382, cert, denied, 
276 Md. 745 (1975) 61,63 

Holt V. State, 50 Md. App. 578 (1982) 36 

Hunt V. State, 321 Md. 387 (1990), cert, denied, 502 U.S. 835 (1991) ... 63 

Johnson v. State, 332 Md. 456 (1 993) 57, passim 

Jolmsan v. State, 360 Md. 250 (2000) 38 



IV 



Page 

Jones V. State, 132 Md, App. 657 (2000) 18 

Jones V. State, 182 Md. 653 (1944) 57 

Kirklandv. State, 75 Md. App. 49 (1988) 58 

Klauenberg v. State, 355 Md. 528 (1999) 62 

Leuschner v. State, 41 Md. App. 423 (1979) 60 

Lyba v. State, 321 Md. 564 (1991) 29 

Mackv. State, 300 Md. 583 (1984) 29 

Marshall v. State, 346 Md. 186 (1997) 30, 31 

McCray v. State, 305 Md. 126 (1985) 58 

McKenzie v. State, 236 Md. 597 (1964) 40 

Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285 (1892) 57 

Oken V. State, 327 Md. 628 (1992), cert, denied, 507 U.S. 931 (1993) . . 47 

Oken V. State, 327 Md. 628 (1992), cert, denied, 507 U.S. 931 (1993) . . 57 

Richmond v. State, 330 Md. 223 (1993) 65 

Robinson v. State, 66 Md. App. 246 (1986) 57 

Rosenberg v. State, 129 Md. App. 221, cert, denied, 
358 Md. 382 (1999) 38 

Simpson v. State, 121 Md. App. 263 (1998) 47 

Smalhyood v. State, 320 Md. 300 (1990) 29, 30 

V 



Snyder V. State, 361 Md. 580 (2000) 56, 59 

State V. Cox, 298 Md. 173 (1983) 30 

State V. Daughton, 321 Md. 206 (1990) 65 

State V. Deleon, Md. App. _, No. 866, Sept. Term, 2001 
(filed April 3, 2002) 52 

State V. Hutchinson, 287 Md. 198 (1980) 65 

State V. Jones, 138 Md. App. 178 (2001), cert, granted, 
365 Md. 266 (2001)(argued December 3, 2001) 54 

State V. Thomas, 325 Md. 160 (1992) 16 

Stevenson v. State, 299 Md. 297 (1984) 17 

Stewart v. State, 104 Md. App. 273 (1995) 19 

Stoiiffer V. State, 1 18 Md. App. 590 (1997), aff'd in part, rev'd in part, 
on other grounds, 352 Md. 97 (1998) 29 

Strickler v. Greene, 527 U.S. 263 (1999) 16, 17 

Thomas v. State, Md. App. , No. 255, Sept. Term, 2001 

(filed March 1,2002) 47 

Tipton v. State, 39 Md. App. 578 (1978) 37 

Tuerv. McDonald, 112 Md. App. 121 (1996), affd, 
347 Md. 507 (1997) 36 

United States v. Beckford, 962 F. Supp. 780 (E.D.Va. 1997) 18 

United States v. Brockington. 849 F.2d 872 (4"' Cir. 1988) 52 

vi 



United States v. Derrick, 163 F.3d 799 (4'' Cir. 1998) 52 

United States v. Elmore, 423 F.2d 775 (4* Cir. 1970), cert, denied, 
400 U.S. 825 (1970) 18 

United States v. Hasting, 461 U.S. 499 (1983) 52 

United States v. Higgs, 713 F.2d 39 (3"^^ Cir. 1983) 18 

United States v. Shifflett, 798 F. Supp. 354 (W.D.Va. 1992) 18 

United States v. Smith Grading & Paving, Inc., 760 F.2d 527 
(4"^ Cir. 1985), cert, denied, 41 A U.S. 1005 (1985) 17 

Vandegrift v. State, 82 Md, App. 617, cert, denied, 

320 Md. 801 (1990) 61,63 

Ware v. State, 348 Md. 19 (1997) 16 

Ware v. State, 360 Md. 650 (2000), cert, denied, 

121 S.Ct. 864(2001) 36,59 

Watkins v. State, 328 Md. 95 (1992) 38 

Watkins v. State, 357 Md. 258 (2000) 56 

Wilhelm v. State, 212 Md. 404 (1974) 47 

Williams v. State, 364 Md. 160 (2001) 39 

Williams v. State, 99 Md. App. 71 1 (1994), aff'd on other grounds, 
344 Md. 358 (1996) 56 

Wilson V. State, 363 Md. 333 (2001) 16, 19 

Yeagy-.v. State, 63 Md. App. 1 (1985) 19 

vii 



Page 

Constitutional Provisions 
United States Constitution: 

Article 21 29 

Sixth Amendment 28, passim 

Rules 

Maryland Rules of Procedure: 

Rule 4-242 20, passim 

Rule 4-263 38, 40 

Rule 4-323 60, 61 

Rule 5-403 37, passim 

Rule 5-801 55 

Rule 5-803 55, passim 

iMiscellaneous 

Lynn McLain, Maryland Rules of Evidence § 5-803 (1994) 58 



viii 



IN THE 

COURT OF SPECIAL APPEALS OF MARYLAND 



SEPTEMBER TERM, 2000 



NO. 923 



ADNAN SYED, 

Appellant 

V. 

STATE OF MARYLAND, 
Appellee 



APPEAL FROM THE CIRCUIT COURT 
FOR BALTIMORE CITY 
(Wanda Keyes Heard, Judge) 



BRIEF OF APPELLEE 



STATEMENT OF THE CASE 
Appellee, the State of Maryland, accepts the Statement of the Case set 
forth in the brief of Appellant, Adnan Syed. 

QUESTIONS PRESENTED 
1 . Was there any violation of Brady v. Maryland where Syed was able to 
cross-examine State's witness. Jay Wilds, about all relevant aspects of his plea 
agreement and the manner in which he obtained the assistance of private 
counsel? 



2. Did the trial court properly exercise discretion in permitting a 
witness to read a portion of a letter written by the victim and addressed to 
Syed? 

3. If preserved, did the trial court properly exercise discretion in 
admitting the victim's diary into evidence? 

STATEMENT OF FACTS 

The State accepts the Statement of Facts set forth in the brief of Syed, 
with the following additions and corrections. 

Police recovered a page torn from a map in the rear seat of the victim's, 
Hae Lee, vehicle. (1/31/00, 58). The page included the map area of Leakin 
Park, the location where Lee's body was found. (1/31/00, 60). Syed's 
fingerprint was found on an identification card in the glove compartment of the 
car. (2/1/00, 24-25).' Syed's palm print was found on the back cover of the 
map recovered fi-om the car. (2/1/00, 27). Syed's fingerprints were also found 
on floral paper recovered fi-om the back seat of the car. (2/1/00, 29). Two 
hairs recovered fi"om the victim's body matched Syed's physical 
characteristics, but did not match his hair exactly. (2/1/00, 117). 

Jay Wilds was the State's primary witness. Wilds testified before the 
jury on direct examination on February 4, 2000. (2/4/00, 115-164). Wildswas 
cross-examined by Syed on February 4, 2000, (2/4/00, 164-246), February 10, 
2000, (2/10/00, 13-159, 169-189), February 11, 2000, (2/11/00, 65-107), 
Februar>' 14, 2000, (2/14/00, 40-162), and February 15, 2000, (2/15/00, 10- 
1 33). Wilds's redirect examination occurred on Februar>' 1 5, 2000, (2/15/00, 



' Jay Wilds testified that after they buried Hae Lee, Syed was "flipping 
through her wallet." (2/4^00, 156), 



2 



133-150), and he was subject to re-cross examination by Syed the same day. 

(2/15/00, 150-162). 

Pertinent to the issues raised by Syed, on direct examination, Wilds 

identified the plea agreement that he signed in which he admitted to being an 

accessory after the fact to the murder of Hae Lee. (2/4/00, 162-63; State's Ex. 

35). Asked about his understanding of the agreement. Wilds replied: 

Well, if I tell any kind of lie, it voids it and it's no good. 
It's a truth agreement, and that's about it, a cap. As long as I tell 
the truth, I can only get a certain amount of years. 

(2/4/00, 163). 

The plea agreement was admitted without objection. (2/4/00, 163). On 
cross-examination, Wilds testified that he signed the agreement on September 
7, 1999. (2/4/00, 165). Wilds agreed that the agreement did not contain a 
recitation of the underlying facts of the crime. (2/4/00, 167). Wilds also 
agreed that there was no recitation of facts at his plea hearing. (2/4/00, 1 94).^ 
On continued cross-examination of Wilds, Syed's counsel inquired further as 
to the procedures used and questions asked at Wilds's hearing. (2/4/00, 212- 
20). Wilds testified that he understood that he faced up to five years in prison 
as an accessory after the fact. (2/4/00, 216). Wilds also testified that he 
understood there would be "both a guilty plea and a disposition sometime far 
in the future," and that would occur after the State determined whether he had 
fulfilled his obligation under the agreement, (2/4/00, 217). Wilds also 



A transcript of that hearing, before the Honorable Joseph P. 
McCurdy, was identified and is in the record, and that transcript indicates that 
the prosecutor informed the court that it would provide a written statement of 
facts at the time of disposition on Wilds's plea. (9/7/99, 2-3; 2/22/00, 48-50). 



3 



testified that he did not swear an oath at the hearing before Judge McCurdy. 

(2/4/00, 218).^ Also during Wilds's cross-examination, in response to Syed's 

leading question, Wilds testified that Mr. Urick, the prosecutor, helped provide 

him with an attorney. (2/10/00,156). Wilds testified before thejury that this 

assistance was provided before Wilds was charged in the case with accessory 

after the fact to murder. (2/10/00, 156). 

Additionally, on the fifth and final day of cross-examination of Wilds, 

Syed extensively cross-examined Wilds concerning all the details surrounding 

the plea agreement and how he came to be represented by Ms. Benaroya. 

(2/15/00, 39-133). Wilds testified before the jury that before September 6, 

1999, he spoke with the Public Defender's Office, but they would not provide 

him with representation until he had been charged. (2/15/00, 39-40). Wilds 

testified that when police came to pick him up on September 7, 1999, he did 

not know that day that he would be entering a plea. (2/1 5/00, 42). The police 

did not tell Wilds that he was being taken to the State's Attorney's Office, and 

Wilds had never been in the prosecutor's, Mr. Urick's, office before that day. 

(2/1 5/00, 51). Wilds confirmed that prior to meeting Mr. Urick, he had not 

been charged, he had not been before a Commissioner, and he had not seen a 

judge. (2/15/00, 56-57). Police did not tell Wilds that he had to work out a 

deal, if there was to be one. with Mr. Urick. (2/15/00, 57). Wilds then 

answered the following questions on cross-examination before thejury: 

Q. And Mr. Urick introduced himself to you, you of 
course asked him now when am I going to get charged? 

A. No, ma'am. 



^ The transcript ofthe proceeding indicates to the contrary. (9/7/99,3). 



Q. And did he express questions himself? 

A. He told me that he had someone he would like me to 

meet. 

Q. He had somebody - the very first thing he said was 
there's somebody that I want you to meet? 

A. Yes, ma'am. 

Q. And at that point he had introduced himself to you. 
Had you spoken back to him? 

A. I believe I said hello. 

Q. And did you ask him for help with picking a lawyer? 
MR. URICK: Objection. 
THE COURT: Overruled. 
A. NOj ma'am. 

Q. Did you ask for any assistance from him at all? 
A. No, ma'am. 

Q. Did you tell him you wanted a lawyer, even though 
you might not have asked for his help? 

A, J believe he told me I was going to need one. 

Q. He told you that you were going to need one, and then 
he told you there's somebody he'd like you to meet? 

A. Yes, ma'am. 

(2/15/00, 58-59). 



The person Urick wanted to introduce was not in the same office, but 
was nearby. (2/1 5/00, 59). Wilds testified that he did not ask Urick why he 
needed a lawyer because he believedbe was going to be charged in connection 
with the murder. (2/15/00, 60). Urick then took Wilds to meet a person that 
Urick described as "a very good lawyer, defense attorney, and that she takes 
- she does some pro bono work." (2/15/00, 61). Wilds then testified before 
the jury that he knew nothing about this other lawyer, nothing about her 
reputation or experience, and had never met her before that day. (2/15/00, 61- 
62). He was tiien asked the following questions before the jury by Ms. 
Gutierrez: 

Q. Now, you understood what pro bono meant, did you 

not? 

A. Yes, ma'am, 

Q. When he said it you knew that that meant without a 
fee, did you not? 

A, I understood that, yes. 

(2/15/00, 63). 

Wilds 's cross-examination on this subject continued: 

Q. And, sir, did you come to understand that that lawyer 
was available to you pro bono? 

A. Yes, ma'am. 

Q. And you needed that, did you not. if you needed a 
lawyer? 

A. Yes, ma'am. 



Q. And you couldn't have afforded your own lawyer 
could you of? 

*■ A. No, ma'am. 

5, Q. That's why you had called the Public Defender's 

Office, didn't you? 

A. Yes, ma'am. 

Q. Because you thought if you needed a lawyer you had 
to get a lawyer that wasn't going to cost you any money? 

A. Correct. 

Q. Because you couldn't have afforded to go out and 
hire a lawyer back then? 

■ A. No, ma'am. 

(2/15/00, 65). 

After meeting with Benaroya for approximately one hour and thirty 
minutes, Benaroya, Urick, and Wilds discussed a plea agreement. (2/15/00, 
71). At the end of another hour, Wilds signed the plea agreement, which he 
previously called a "truth agreement," in his testimony. (2/15/00, 72). Wilds 
testified this was the first instance when he had been presented with a plea 
agreement. (2/1 5/00, 73). Wilds testified that some alterations were made to 
the plea agreement. (2/1 5/00, 74). Wilds testified that he observed his lawyer 
make these alterations. (2/1 5/00, 75). Wilds also testified that the alterations 
were "minor," and concerned the terms of how he was to go to court, and 
apparently, boilerplate language about whether the case was a drug case. 

7 



(2/1 5/00, 76, 78-79). Atthe end of this meeting, the plea agreement had been 
totally negotiated. (2/15/00, 77-78).* 

After the plea was signed, the parties went to the courthouse. (2/1 5/00, 
83-84). Wilds again repeated earlier testimony that the agreement outlined » 
certain obligations on his part, and certain statements on the part of the State. 
(2/15/00, 117). Wilds repeated that he committed to tell the truth, that he 
would testify when the State told him to, and that on those occasions, he would 
tell the truth. (2/1 5/00, 1 1 8). Wilds tiien was asked if his understanding was 
that, under the agreement, whether Mr. Urick would be making certain 
recommendations at Wilds's sentencing. (2/15/00, 121). Wilds testified as 
follows: 

Q. Well, sir, you understood that one of the 
recommendations, one of the agreements in this agreement that 
obligates Mr. Urick is that if you complete all of the terms and 
conditions stated in the agreement to the satisfaction of the 
State, that's Mr. Urick, right, the State? 

A. Yes, ma'am. 

Q. And you understood that then, didn't you? 
A. Yes, ma'am. 

Q. That the State will recommend the sentence of five 
years - 



^ Wilds was then questioned about paragraph 1-A of tbe plea 
agreement, which concerned whether Wilds had been truthful in all prior 
interviews. (2/15/00, 81). The court sustained objections to Syed's 
argumentative questions about whether Wilds informed Urick "about all of the 
times you had already lied?" (2/15/00, 80-82). 



8 



MR. URICK: Objection. 

Q. - to the Department of Correction with all but two 
years suspended? 

THE COURT: Overruled. Is that your understanding? 

THE WITNESS: Yes, ma'am. 

(2/15/00, 121-22). 

Wilds then was asked to review the agreement, and Syed asked the 

following, still on cross-examination: 

Q. Okay. And, in fact, item D says that if you fail to 
complete each and every obligation under the agreement the 
State will recommend a sentence as follows, five years to the 
Department of Correction; is that correct? 

A. Yes, ma'am. 

(2/15/00, 123). 
Further: 

Q. And you also, sir, understood that actually what 
sentence you receive at any point in time when you come up for 
sentencing when your guilty plea is concluded, is really up to 
the judge? 

A. Yes, ma'am. 

Q. And that ultimately only the judge gets to decide? 
A. Yes, ma'am. 

Q. Right? But that the determinations of whether or not 
you met your obligations will always be up to Mr. Urick? 

MR. URICK: Objection. 



THE COURT: Overruled. 



Q. Will it not? 

THE COURT: Is that your understanding? 

THE WITNESS: Yes, ma'am. 

(2/15/00, 124-25). 

Next, Syed finally concluded cross-examination of Wilds before the 
jury with several questions concerning representation by Benaroya. The 

exchange began: 

Q. Now, Mr. Wilds, the plea agreement, the Truth 
Agreement as you call it, doesn't say anything about the benefit 
of having a lawyer, does it? 

MR, URICK: Objection. 

THE COURT: Overruled. Does the agreement say 
anything about the benefits of having a lawyer? 

THE WITNESS: No, ma'am. 

Q. And, sir, when you signed that agreement on the 7'*' 
of September, did you regard it as a benefit provided to you? 

A. No, ma'am. 

Q. Did you think that it was a good thing? 
A. Having a lawyer? 
Q. Yes. 

A. Yes, ma'am. 



10 



Q. That day? 
A. Yes, ma'am. 

Q. And did you think it was something that Mr. Urick 
had provided? 

MR. URICK: Objection. 

THE COURT: Overruled. What did you think? 

Q. In your mind? 

A. At that point in time, yes, 

Q. Yes. And did Mr. Urick ever tell you that that was a 
benefit that he was providing you? 

A. No, ma'am. 

Q. Did you not come to regard it at some point as a good 
thing that you got a free lawyer? 

A. Yes, ma'am. 

Q. And did you not come to think of it as something that 
was sort of part of a whole deal? 

A. No, ma'am. 

Q. Did you think that having a lawyer went with in any 
way the plea agreement that you signed? 

A. No, ma'am. 

(2/15/00, 127-28). 



11 



Wilds was then asked about his feelings after September 7,1999, about 

manner of retention of Benaroya. The following occurred before the jury: 

Q. Yes. Mr. Wilds, when there came the time that you 
had questions about her, you also had questions about the plea 
that had gone down that day, did you not? 

A. Yes, ma'am. 

Q. You thought, in your words, that things smelled fishy, 
did you not? 

A. Yes, ma'am. 

Q. And by the use of that term you meant they didn't 
smell quite right, did you not? 

A. No, ma'am. 

Q. Well, I want to make sure. 

A. I'm agreeing with you. 

Q. That they didn't smell right? 

A. Yes, ma'am. 

Q. And by not smelling right, they didn't make you feel 
too good, did they? 

A. No, ma'am. 

Q. You came to have questions about how it was that 
Mr. Urick provided you a lawyer, did you not? 

MR. URICK: Objection. 

THE COURT: Overruled. 



12 



Q. Did you not? 

THE COURT: Is that the reason that you thought it 
smelled fishy? 

THE WITNESS: No, ma'am. 

Q. Well, sir, you had thought like it sure felt like a 
conflict, did you not? 

A. Yes, ma'am. 

Q. That was the word that you used, was it not? 
A, Yes, ma'am. 

Q. That the conflict was that it didn't appear to you that 
the lawyer was going to be for your interests, isn't that right? 

A. Yes, ma'am. 

Q. And you had suspicions that because of the 
appearance of things that the lawyer might be working for his 
interest? 

MR. URICK: Objection. 

THE COURT: Overruled. 

Q. Did you not? 

THE COURT: Is that what you were thinking, Mr. 

Wilds? 

THE WITNESS: Somewhat. 



13 



Q. Somewhat. And you knew that it wasn't quite right 
if the lawyer is working for his interest ljut acting as your 
lawyer, isn't that correct? 

A. Yes, ma'am. 

Q. And that's what you meant by it smelled fishy, is it 

not? 

A. Yes, ma'am. 

Q. And you questioned, in fact, whether or not this 
lawyer that you met in the prosecutor's office who was 
prosecuting you was just brought in to make you make the plea, 
did you not? 

A, Yes, ma'am. 

Q. That's what you thought? 

A. Yes, ma'am. 

Q. In your mind? 

A. Yes, ma'am. 

Q. Even after this day, isn't that correct? 

A. Which day? 

Q. The 7'" of September, 

A. Yes, ma'am. 

MS. GUTIERREZ: No more questions. 
(2/15/00, 130-33). 



14 



On redirect examination, Wilds testified that he felt he had a choice in 
selecting his attorney. (2/15/00, 148). Wilds testified that the attorney that he 
had, Benaroya, was because of his own choice. (2/15/00, 148), Wilds was 
then asked whether he was satisfied with Benaroya, arid he replied, "[vjery 
much so." (2/15/00, 148). 

Other facts may be supplemented and modified in the following 
Argument. 

ARGUMENT 
I. 

THERE WAS NO VIOLATION OF BRADY V. MARYLAND 
WHERE SYED WAS ABLE TO CROSS-EXAMINE STATE'S 

WITNESS, JAY WILDS, ABOUT ALL RELEVANT 
ASPECTS OF HIS PLEA AGREEMENT AND THE 
MANNER IN WHICH HE OBTAINED THE ASSISTANCE 
OF PRIVATE COUNSEL. 

In his first issue on appeal, Syed claims that the State violated the 
dictates of Brady v. Maiyland, 373 U.S. 83 (1963), when it failed to disclose 
certain information pertinent to the impeachment of Jay Wilds prior to trial. 
(App. Br. 29). The complaints primarily fall into two categories: (A) whether 
there was a Brady violation when the prosecutor failed to disclose that he had 
recommended Wilds obtain an attorney; and (B) whether there was a Brady 
violation when the prosecutor failed to disclose all the circumstances 
surrounding Wilds 's plea agreement. As will be explained, these arguments 
are without merit, primarily for the reason that Syed was able to elicit all this 
information effectively by u ay of cross-examination. Thus, the information 
was before the jury, and the jury had knowledge of all the things complained 
about by Syed in order to judge Wilds' s credibility. 



15 



A. General Principles 



jRBradyv.Maiyland,272 U.S. 83 (1963), theSupreme Court held that: 

[Sjuppression by the prosecution of evidence favorable to an 
accused upon request violates due process where the evidence 
is material either to guilt or to punishment, irrespective of the 
good faith or bad faith of the prosecution. 

Conyers v. State, 367 Md. 571, 584 n. 18 (2002) (quoting Brady, 373 U.S. at 

87); accord Wilson v. State, 363 Md. 333, 345-47 (2001). 

The Maryland Court of Appeals has stated: 

To establish a Brady violation, ^the defendant must 
establish (1 ) that the prosecutor suppressed or withheld evidence 
that is (2) favorable to the defense - either because it is 
exculpatory, provides a basis for mitigation of sentence, or 
because it provides grounds for impeaching a witness - and (3) 
that the suppressed evidence is material. 

Ware v. State, 348 Md. 19, 38 (1997); see also Strickler v. Greene, 527 U.S. 

263, 280 (1999) (duty to disclose such evidence applies even when no request 

by accused, and encompasses impeachment evidence as well as exculpatory 

evidence). 

Evidence is considered material, and relief is therefore appropriate, if 
"there is a reasonable probability that, had the evidence been disclosed to the 
defense, the result of the proceeding would have been different. A 'reasonable 
probability' is a probability sufficient to undermine confidence in the 
outcome." Ware, 348 Md. at 46 ( quoting State v. Thomas, 325 Md. 1 60, 1 90 n. 
8 ( 1 992)); see also Strickler, 527 U.S. at 28 1 ("strickJy speaking, there is never 
a real 'Brady violation' unless the nondisclosure was so serious that there is 
a reasonable probability that the suppressed evidence would have produced a 



16 



different verdict."); Stevenson v. State, 299 Md. 297, 308 (1984) (new trial not 

warranted where evidence not material to the outcome of the case). 

The Supreme Court further explained that it is the Petitioner's burden 

to establish a reasonable probability of a different result. Strickler, 527 U.S. 

at 291 . To that end, the Court has held: 

As we made clear in Kyles, the materiality inquiry is not 
just a matter of determining whether, after discounting the 
inculpatory evidence in light of the undisclosed evidence, the 
remaining evidence is sufficient to support the jury's 
conclusions. Id., at 434-435, 115 S.Ct. 1555. Rather, the 
question is whether "the favorable-evidence could reasonably be 
taken to put the whole case in such a different light as to 
undermine confidence in the verdict" Id., at 435, 115 S.Ct. 
1555. 

Strickler, 527 U.S. at 290. 

The Supreme Court majority further explained what does constitute 
the proper standard to be applied to the materiality determination: 

The District Court was surely correct that there is a 

reasonable possibility that either a total, or just a substantial, 
discount of Stoltzfus' testimony might have produced a different 
result, either at the guilt or sentencing phases. Petitioner did, for 
example, introduce substantial mitigating evidence about abuse 
he had suffered as a child at the hands of his stepfather. As the 
District Court recognized, however, petitioner's burden is to 
establish a reasonable prohability of a different result. Kyles, 
514 U.S., at 434, 131 L.£d.2d 490, 1 15 S.Ct. 1555. 

Strickler, 527 U.S. at 291 (emphasis in original). 

Both federal and Maryland cases discussing Brady have stated that 
there is no violation of due process where the alleged suppressed exculpatory 
evidence is disclosed during trial. In United States v. Smith Grading & 



17 



Paving, Inc., 760F.2d 527 (4* Cir. 1985), cert denied, 474V. S. 1005 (1985), 

the defendants argued that the government failed to disclose exculpatory 

evidence from an engineer who testified he purposefully under-estimated a 

public works project's cost, which would have tended to illustrate defendants' * 

claim that their bids for the project were not excessively high. The Fourth 

Circuit ruled: 

Even if we assume that the engineer's testimony is 
exculpatory, its belated disclosure does not constitute reversible 
error. No due process violation occurs as long as Brady material 
is disclosed to a defendant in time for its effective use at trial. 
United States v. Higgs, 713 F.2d 39 (3^'' Cir. 1983). In this case, 
the exculpatory information was put before the jury during 
cross-examination of the very first trial witness. The 
information was available for use in the defendant's cross- 
examination of all further government witnesses as well as in 
the defendants' case in chief The disclosure of this exculpatory 
evidence, at trial, does not rise to the level of a constitutional 
violation. 

as. V. Smith Grading & Paving. Inc., 760 F.2d at 532; see also United States 
V. Elmore, 423 F.2d 775, 779 (4* Cir. 1970) ("disclosure to be effective must 
be made at a time when the disclosure would be of value to the accused."), 
cert, denied, 400 U.S. 825 (1970); UnitedStates v. Beckford, 962 F. Supp. 780, 
788 (E.D.Va, 1997) ("[t]he determination of the precise time at which jBmch" 
material must be disclosed is necessarily governed by the specific nature of the 
5;'arfv material at issue - i.e., whether it is exculpatory or merely impeachment 
evidence."); UnitedStates v. Shifflett, 798 F. Supp. 354, 355 (W.D.Va. 1992) 
(no constitutional violation to disclose criminal records of wimesses after they 
testified on direct examination because the nature of the materials permitted 
its effective use if available for cross-examination); Jones v. State, 132 Md. » 



18 



App. 657, 675 (2000) ("[t]he Brady sin is hiding something and keeping it 

hidden, not hiding something temporarily in order to surprise someone with a 

sudden revelation"); Stewart v. State, 104 Md. App. 273, 286-88 (1995) (no 

suppression of evidence where defense witness "fiilly able to apprise the 

defense of what happened" at an identification procedure); Yeagy v. State, 63 

Md. App. 1, 22 (1985) (information complained about was already known by 

appellant and prevented invocation of Brady doctrine). 

B. There was no Brady violation where Syed effectively impeached 
Jay Wilds and elicited all relevant information about Wilds's 
plea agreement during five days of cross-examination. 

All the material which Syed claims was suppressed related to the 

impeachment of Jay Wilds, not whether the alleged suppressed information 

was exculpatory. On appeal, Syed relies heavily upon two recent Court of 

Appeals cases, Conyers, supra, and Wilson, supra. In Conyers, the Court of 

Appeals found that information regarding "the commencement and course of 

[a witness's] negotiations for a benefit was withheld from Petitioner until the 

post conviction hearing," a proceeding which took place three (3) years after 

Petitioner's trial. Conyers, 367 Md. at 602-03. In Wilson, although the State 

argued that information regarding the plea agreements had been substantially 

disclosed at trial, the Wilson Court based its holding upon the postconviction 

court's finding, some twenty (20) years after the trial, that there were written 

plea agreements that were never disclosed to the defense. Wilson, 363 Md. at 

348. Here, in contrast, everything that Syed complains about with respect to 

Jay Wilds's written plea agreement, including the actual written plea 



19 



agreement, was before the jury prior to deliberations. Thus, there was no 

violation of Brady? 

During cross-examination of Wilds, Syed focused on whether Wilds 

had actually pleaded guilty to accessory after the fact, primarily based on 

whether there was compliance with Maryland Rule 4-242. (2/4/00, 194-95). 

The jury was excused from the courtroom, and Syed's counsel argued: 

What I am seeking to get out and what I think I am 
entitled to for two reasons, this witness has been presented to 
this jury as not only a witness who has entered a plea agreement 
which then makes that the subject of impeachment, what the 
agreement was, how much it was limited to, whatever. But he 
has now been presented in direct as a witness who has pled 
guilty. In terminology, this wimess has acceded he understands 
because he freely answered those questions, and there were four 
of them following that about the when [sic] he pled guilty. 

In fact, this witness has not entered a guilty plea, 

(2/4/00, 198).'' 

The trial court responded: 



^ In arguing before this Court, Syed argues preliminarily that the 
undisclosed circumstances surrounding the plea agreement constitute a Brady 
violation, and then argues eight sub-issues which concern whether the trial 
court abused its discretion in certain evidentiary-related rulings. The 
evidentiary rulings cannot be taken out of context, and can not be treated non- 
chronologically. Thus, Appellee's response will mirror the testimony and 
rulings as they actually happened at trial, and will not follow the same order 
of issues presented in Syed's brief 

^ Syed proffered that there was a videotape of the plea hearing. 
(2/4/00, 198). Syed viewed that tape during a break in the cross-examination 
of Wilds. (2/11/00, 113). 



20 



THE COURT: But, Ms. Gutierrez, isn't it a fact that the 
purpose of your questions is to determine whether or not he has 
any bias, motive, interest in testifying one way or another based 
on promises he believes that he has, not whether - 

MS. GUTIERREZ: Yes, sir [sic], and I plan to get there. 

THE COURT: Wait a minute. Not whether, in fact, they 
are promises, whether or not they are, in fact, promises that will 
be kept to him, but whether or not they are influencing his 
testimony today. So in that regard, it really doesn't matter 
whether they called it a guilty plea ornot but, rather, whether or 
not you have the latitude to inquire into any promises that have 
been made. 

(2/4/00, 201-02). 

The prosecutor responded to further argument by informing the court 

that Wilds pleaded guilty under oath. (2/4/00, 203). Syed argued that Wilds's 

guilty plea was not valid because of failure to comply with Md. Rule 4-242, 

and the trial court responded, "Ms. Gutierrez, you are arguing Mr. Wilds' point 

on appeal of his guilty plea. If, by some reason, Judge McCurdy did not 

follow the 4-242 litany, that's for another day and another court to decide." 

(2/4/00, 204). The court then ruled: 

THE COURT: Ms. Gutierrez, may I make a suggestion 
then, in light of your argument, that we will do the following: I 
will allow you to inquire as to what this witness recalls being 
done during his guilty plea proceeding. That is, he has already 
said he wasn't under oath, and anything else that you would like 
to draw out. Then in the instructions to the jury, I will be happy 
to advise the jury what a guilty plea is under the rules. And if 
you would like to structure an instruction - 

MS. GUTIERREZ: I will do so. 



21 



THE COURT: - that would outline what a guilty plea is, 
and then we can utilize it in that fashion, because I think what 
you are trying to do is, at this juncture, argue the law mixed with 
a witness who may not know that certain procedures under 2- 
242 [sic] may or may not have been followed. 

(2/4/00, 205). 

The court further clarified its ruling prior to the resumption of cross- 
examination: 

I know that the State may not agree but the court's concern is 
that if this witness believes that he was engaged in a guilty plea 
and that, as a result of that guilty plea, that this promise is 
binding in some fashion and that is directing his testimony, the 
defense has a right to inquire as to the basis for that belief. And 
if for some reason it is a faulty beUef, then the jury is entitled to 
hear what it is that may have happened during a guilty plea that 
this witness does not either recall or may have forgotten or was 
not done, and opens him up to a challenge to his credibility. 

(2/4/00, 209). 

As detailed above in the statement of facts, Syed was then permitted to 
continue cross-examination on the plea hearing, (2/4/00, 212-20), and Wilds 
testified that he understood that he faced up to five years in prison as an 
accessory after the fact, and that the ultimate disposition in his case would 
occur after the prosecutor determined whether Wilds had kept up his end of the 
bargain, i.e., to provide truthful testimony at Syed's trial. (2/4/00, 216-17). 

The issue concerning the plea hearing and Wild's plea agreement did 
not again arise until several days later, after the court took testimony firom 
another wimess, during Wild's resumed cross-examination. During that 
testimony before the jur>'. Wilds testified that Mr. Urick, the prosecutor, 
helped provide him with an attorney. (2/10/00, 156). Wilds testified before 



22 



the jury that this assistance was provided before Wilds was charged in the case 

with accessory after the fact to murder. (2/10/00, 156). As will be discussed 

in more detail below, the trial court then denied Syed's requests: (1) to call Mr. 

Urick, the prosecutor, as a witness, (2/11/00, 56); (2) to strike Wilds's 

testimony, (2/1 1/00, 34); and, (3) to compel disclosure of communications 

between Wilds and his attorney. (2/1 1/00, 44). 

Subsequently, after further cross-examination of Wilds, Syed's counsel 

had an opportunity to view a videotape of Wilds's plea hearing. (2/1 1/00, 

1 13). Syed stated that all that occurred at the plea hearing was the litany on 

whether Wilds was entering a knowing plea, but that no verdict was entered 

on the plea. (2/1 1/00, 1 14). The trial court agreed, and stated that the file 

indicated that Wilds's guilty verdict on the plea was held sub curia. (2/1 1/00, 

122). The court agreed with Syed that Wilds's file was "very, very odd and 

unusual and I can see why would [sic] Ms. Gutierrez would start to wonder." 

(2/1 1/00, 123). The prosecutor then argued that the plea statute does not 

require the plea to be conducted in one proceeding, an argument to which the 

trial court agreed. (2/1 1/00, 127). It then became apparent that there was a 

subsequent proceeding, apparently in chambers with Judge McCurdy, where 

Wilds and his attorney were present, and to which the prosecution waived its 

presence. (2/1 1/00, 134). The trial court then determined that Syed had a 

valid complaint, as follows: 

She has a witness on the stand, there's been a hearing involving 
this witaess that may or may not reflect on the credibility of this 
witness, we don't know if the proceeding was under oath, we 
don't know what he said during the proceeding, we don't know 
what he was asked during the proceeding, but he is your star 
witness in your case. She's reviewed a statement, it's the guilty 
plea, but there was another hearing held involving this very 



23 



same witness for which she has no clue what it's about and to 
ask or inquire bHndly means she doesn't know what she's 
dealing with. Perhaps we could bring him in and ask him. 
Perhaps he knows. But you [THE PROSECUTOR] can 
understand why she might want that information as a lawyer. 

(2/11/00, 138-39). 

The court then excused the jury for the remainder of the day and the 
court, Syed's counsel, and the prosecutor, questioned Wilds on his plea 
agreement. (2/11/00, 145-215). The court began by making clear that it was 
not seeking to leam about any conversations between Wilds and his attorney. 
(2/1 1/00, 146). Wilds testified that he appeared before Judge McCurdy, in 
court, for a guilty plea. (2/11/00, 147). A subsequent hearing was set for 
January 4, but Wilds said that hearing did not take place because disposition 
would depend upon what Wilds did at Syed's trial. (2/11/00, 148). Wilds 
testified that he met with Benaroya and Judge McCurdy after his plea hearing 
in chambers. (2/1 1/00, 150, 153). Wilds had called Judge McCurdy's clerk 
on his own when he, Wilds, could not get in touch with his lawyer. (2/1 1/00, 
154). Wilds then testified that no one from the State's Attorney's Office was 
present at this meeting in chambers, that he did not know if the State's 
Attorney's Office knew about the meeting, and that no one firom the State's 
Attorney's Office had asked him about what happened at that meeting. 
(2/1 1/00,155). 

Syed then was permitted to inquire of Wilds, and extensively 

questioned him about: why he was concerned about Benaroya's representation, 
(2/1 lyOO, 158-61, 198); who he spoke to in Judge iMcCurdy's chambers about 



24 



that concern, (2/11/00, 162)'; whether Wilds indicated that he wanted to 
withdraw or alter the plea agreement, (2/11/00, 162-63, 202-03)^ whether, 
after Benaroya told him to be in Judge McCurdy's chambers the next day, 
Wilds spoke to any detectives or anyone from the State's Attorney's Office, 
(2/11/00, 163-65, 202-04, 207-08)'; who was present at this meeting in 
chambers, (2/1 1/00, 165-66)'"; what Wilds's concerns were, including whether 
he was concerned that his lawyer was not representing his best interest, 
(2/11/00, 168-69, 173-74)"; whether he told Judge McCurdy about those 
concerns and whether he told Judge McCurdy if he wanted a different lawyer, 
(2/1 1/00, 1 70-72, 205, 209)"; the circumstances surrounding his first meeting 



Wilds left a voice mail message directly on Judge McCurdy's voice 
mail. (2/1 1/00, 162). He also testified that he contacted the State because he 
believed they would have Benaroya' s telephone number. (2/1 1/00, 204-05). 
He testified he spoke with the assistant prosecutor, Ms. Murphy, who informed 
him that she would try to get Benaroya' s number for Wilds. (2/1 1/00, 207). 

^ Judge McCurdy did ask Wilds if he wanted to withdraw the plea 
agreement. (2/1 1/00, 202, 208-09). Wilds testified he did not indicate that he 
wanted any such alteration or withdrawal of the plea. (2/1 1/00, 162-63). 

' Wilds testified he did not speak to any police or anyone connected 
with the State's Attorney's Office. (2/1 1/00, 164-65). 

Wilds testified it was just him, his lawyer, and Judge McCurdy, and 
that a video camera was turned on during the conversation. (2/1 1/00, 166). 

" Wilds testified he was concerned about who Benaroya was 
representing. (2/11/00,169). 

Wilds testified that he had told Judge McCurdy that he thought 
"things smell fishy." (2/1 1/00, 171). Wilds also testified that prior to the 
meeting in chambers, he and his lawyer had talked and that Wilds's concerns 

(continued...) 



25 



with his lawyer and the manner in which he was informed of the pending 
charges that were going to be filed against him, (2/11/00, 175-182, 186-90); 
when he was charged, (2/11/00, 182-83)"; whether Wilds understood that 
Benaroya's pro bono representation, meant that he would not be charged for 
her services, which he did understand, (2/11/00, 183-84, 190-93, 196-97); 
whether Wilds understood that there were other lawyers that he could have 
selected, (2/11/00, 195-96); what his lawyer may have told Judge McCurdy 
about how she came to represent Wilds, (2/1 1/00, 200)"; and, finally, how 
long the in chambers meeting lasted. (2/1 1/00, 212)." 

Upon inquiry by the State, Wilds testified that the Public Defender's 
Office would not represent him until he had been charged with a crime. 
(2/11/00, 213). He also testified he was very satisfied with Benaroya's 



"(...continued) 

had been "laid to rest." (2/1 1/00, 170). Wilds also testified that he did not 
want a different lawyer representing him. (2/11/00, 172). Wilds also 
explained that his concern was that Benaroya did not keep in touch with him. 
(2/11/00,211). 

Wilds testified that he was first given his charging documents, and 
then taken up to meet Mr. Urick, who introduced him to Ms. Benaroya. 
(2/11/00, 180, 182-83). Wilds also explained that Benaroya "wasn't forced on 
me. It wasn't like they said, this is your lawyer. They asked me, they said 
well, you can meet with her and see if you want her to be your lawyer." 
(2/11/00, 178-79). 

Wilds testified that Benaroya told Judge McCurdy that she had been 
contacted by the State and that she looked at Wilds's case before deciding 
whether to take his case. (2 '1 1/00, 200-01). 

Wilds testified it was about fifteen to twenty minutes altogether. 
(2/11/00,212). 



26 



representation. (2/1 1/00, 213). Wilds also testified that that satisfaction was 

conveyed to Judge McCurdy. (2/11/00,213). Wilds also testified that 

Benaroya informed Judge McCurdy that she came to represent Wilds because 

"she does pro bono work and that she found a case where she felt there was a 

need where someone needed help." (2/1 1/00, 215). 

Following argument, the trial court ruled that Syed would be permitted 

to continue cross-examination of Wilds, (2/11/00, 221, 225), but that the 

circumstances surrounding the in chambers meeting was "a dead end," and that 

"there is nothing there." (2/1 1/00, 223). The court found that such inquiry 

was a "totally collateral area none of which would be admissible." (2/1 1/00, 

229). However, the court made clear that any questions Syed had about 

Wilds 's concerns about his attorney could be asked in front of the jury. 

(2/1 1/00, 225). The next trial date, the court stated what types of questions 

would be permitted upon renewed cross-examination of Wilds: 

Mr. Wilds on cross, Ms. Gutierrez may ask and I believe 
we stopped short of these particular questions, can ask whether 
or not he picked his lawyer. She can ask whether he wanted to 

keep his lawyer. She can ask whether or not there was - at any 
time he was concerned about his lawyer, whether or not that 
concern was clarified in some way. 

(2/14/00, 5). 

After hearing further argument from the prosecutor, the court explained 

why it was allowing such continued cross-examination: 

Now, if Ms. Gutierrez wants to ask those very same 
questions so that the jury gets the benefit of hearing that, I have 
no problem with that because it does go into the mind he had at 
the time he was making a decision to plea guilty. It affected him 
and as I explained to you I view that as a benefit that was 



27 



derived, some assistance that the State's Attorney got - used in 
helping him secure a lawyer. 



It doesn't mean you bought the lawyer for him. It 
doesn't mean you paid the lawyer. It just means that you did 
certain things. The State did certain things and as a result of 
what you did it made it easier for Mr. Wilds to select a lawyer, 
but ultimately he selected the lawyer, and that information did 
not come out in front of the jury, and if Ms. Gutierrez wants to 
bring that out or if you want to clarify that information in front 
of the jury. It goes to his state of mind, his contemplation as to 
what he was getting in exchange for pleading guilty and 
assisting the State, and to the extent defense counsel wants to 
argue it was a benefit and you want to argue it wasn't a benefit, 
the jury could decide what benefit, if any, has affected the 
witness's credibility. 

(2/14/00, 11-12)." 

As detailed in the above statement of facts, Syed was able to 
extensively cross-examine Wilds on his prior statements to police, the manner 
in which in came to be represented by Ms. Benaroya, the plea agreement, and 
the plea hearing. " The Confrontation Clause of the Sixth Amendment requires 



Syed continued to argue that he was entitled to this information 
before trial. (2/14/00, 16). The court agreed, but stated "I will reiterate is 
because we got or you got this information at this juncmre, that you still have 
the ability because the witness is still on the stand ... to inquire of the benefit 
from htm." (2/14/00, 16). The court specifically found that Syed was not 
harmed by any belated disclosure of this information. (2/14/00, 19). 

" Syed argues that the court restricted his cross-examination of Wilds, 
in part, because he was unable to elicit what effect his "previous lies in prior 
statements to police had on the plea agreement." (App. Br., 44). As will be 
explained, not only is this argument without merit, but it is also not preserved, 
because in neither of the instances cited by Syed on appeal did Syed assert that 

(continued...) 



28 



that a defendant be permitted to cross examine witnesses on matters affecting 
their credibility, memory, knowledge or relationship to the parties. Lyba v. 
State, 321 Md. 564, 569 (1991); see also Ebb v. State, 341 Md. 578, 587 (the 
Sixth Amendment and Article 21 of the Maryland Declaration of Rights 
recognize the right of confrontation guaranteed to a criminal defendant, which 
includes the right to cross-examine witnesses against him), cert, denied, 519 
U.S. 832 (1 996). However, once a defendant has reached his "constitutionally 
required threshold level of inquvsy," Lyba, 321 Md. at 570, "trial judges retain 
wide latitude insofar as the Confrontation Clause is concerned to impose 
reasonable limits on such cross-examination based on concerns about, among 
other things, harassment, prejudice, confusion of the issues, the witness' 
safety, or interrogation that is repetitive or only marginally relevant," Id.; 
accord Smallwood v. State, 320 Md. 300, 307 (1990); Stouffer v. State, 118 
Md. App. 590, 625 (1997) ("The allowance of questions on cross-examination 
and determination of their relevance are reserved for the sound discretion of 
the trial court."), aff'd in part, rev 'd in part, on other grounds, 352 Md. 97 
(1 998). Such limitations will be considered erroneous only when some unfair 



''(... continued) 

the court was erroneously restricting his right to cross-examination, or that 
was somehow implicated. (2/10/00, 157; 2/1 5/00, 79). See, generally. 
Mack V. State, 300 Md. 583, 603 (1984) ("[T]he question of whether the 
exclusion of evidence is erroneous and constitutes prejudicial error is not 
properly preserved for appellate review unless there has been a formal proffer 
of what the contents and relevance of the excluded evidence would have 
been."); accord Green v. State, 127 Md. App. 758, 766 (1999). The same is 
true of the other instances cited by Syed because, at the time the objection was 
sustained, Syed did not proffer that Brady was being violated or that his cross- 
examination was being restricted. (2/15/00, 68, 75). 



29 



prejudice inures to a defendant. Smallwood^ 320 Md. at 308. Widiout the 
exercise of such discretion, cross-examination "can reduce itself to a 
discussion of collateral matters which will obscure the issue and lead to the 
fact-finder's confusion." State v. Cox, 298 Md. 173, 178 (1983). 

Here, Syed's five-day cross-examination ofWilds included examination 
on the underlying terms and conditions of his plea agreement, as set forth in 
the above statement of facts, and thus, was not unduly restricted. As for 
Syed's other claim, that he was prevented from learning what changes Wilds 
sought to the plea agreement and whether Ms. Benaroya had been paid any 
money for her representation, the trial court had earlier ruled such information 
was privileged. (2/11/00, 44-45),'^ Further, after the objections were 
sustained, the court explained that the objections were sustained because Syed 
was attempting to pierce the attorney/client privilege between Wilds and 
Benaroya. (2/15/00, 96-97). See Cutchin v. State, __ Md. App. No. 195, 
Sept. Term, 2001 (filed March 1, 2002) (slip op. at 8-18) ("[t]he attorney-client 
privilege is a rule of evidence that prohibits disclosure of a communication 
made in confidence by a client to an attorney to obtain legal advice")." 

In his brief, Syed relies upon Marshall v. State, 346 Md. 186 (1997) 
when discussing the evidentiar\' rulings. In that case, Barry Edwards was the 
sole eyewitness to a murder which he claimed had been committed by 
appellant. Marshall, 346 Md. at 1 90. Prior to trial, Edwards entered a plea to 

As noted in the statement of facts, Syed was able to elicit before the 
jury that Wilds witnessed his attorney make alterations to the agreement, and 
that the alterations were "minor." (2/15/00, 74-79). 

" Syed repeatedly attempted to elicit privileged communications 
throughout Wilds's cross-examination. (2/15/00, 66-69, 73-75, 82-83). 



30 



an unrelated charge concerning an entirely unrelated incident. Id. at 189. A 
condition of that plea agreement was that Edwards testify at Marshall's trial. 
Id. at 190. The trial court in Marshall granted the State's motion in limine 
preventing the defense from inquiring about the other plea agreement because 
it was not a final conviction and because it was in an unrelated case. Id. at 
190-91. 

The Court of Appeals first stated the general rule that the 
"constitutional right of confrontation includes the right to cross-examine a 
witness about matters which affect the witness's bias, interest or motive to 
testify falsely." Id. at 192, However, the right of cross-examination is subject 

to reasonable limits. Id. at 193. The Court stated that: 

The trial judge retains discretion to impose reasonable limits on 
cross-examination to protect witness safety or to prevent 
harassment, prejudice, confusion of the issues, or inquiry that is 
repetitive or marginally relevant. 

Id. 

The Court held that the trial court erred in limiting the cross- 
examination of the sole witness, Edwards. The Court held: 

Petitioner was prevented from asking the witness any questions 
about the terms of his plea agreement, and although the trial 
judge said defense counsel could ask about motive, the offer 
was, in reality, a hollow gesture. Where a witness has a "deal" 
with the State, the jury is entitled to know the terms of the 
agreement and to assess whether the "deal" would reasonably 
tend to indicate that his testimony has been influenced by bias 
or motive to testify falsely. 

Id. at 197-98 (emphasis added). 

The Court went on to find that the error was not harmless: 



31 



Inasmuch as we conclude that defense counsel was denied the 
opportunity to cross-examine Edwards, a key prosecution 
witness, about the condition of Edwards's plea agreement that 
he testify at Petitioner's trial, and that agreement was not 
otherwise made known to the jury, we conclude that the jury 
lacked the opportunity to properly assess Edwards's testimonial 
motivation or potential bias. 

Id. at 199 (emphasis added). 

Here, in contrast, the jury did know that Wilds had a "deal" with the 
State. Indeed, that "deal" was admitted as State's Exhibit 35 without 
objection. (2/4/00, 163). Moreover, as explained above. Wilds testified to his 
understanding of the agreement, i.e., that it was a "truth" agreement, (2/4/00, 
1 62-63, 211), and explained what he knew the possible sentence for accessory 
after the fact was, which was a cap of five years. (2/4/00, 162-63, 216). 
Additionally, Syed extensively cross-examined Wilds about the plea 
agreement. (2/4/00, 164-74. 191-95, 211-20; 2/15/00, 71-79, 83-84, 117-20, 
1 2 1-25). Moreover, in regard to any suggestion that the jury was not aware 
that Wilds gave inconsistent statements to police, that complaint is belied by 
the record which indicates that Wilds was extensively cross-examined 
concerning these statements to the police, including, but not limited to, the 
extent to which he may have lied to police. (2/4/00, 220-23, 229-30; 2/10/00, 
14-20,35-62,66-79, 82-85, 122-31, 133-40, 153-55, 169-77, 185-89; 2/1 1/00, 
65-67, 70-84, 87-88, 93-102; 2/14/00, 40-52, 58, 61-79, 88-93, 97-103, 113- 
117, 120, 128-29, 136-144, 154-56; 2/15/00, 10-23.27-39, 150-55, 156, 161- 
62),^° Additionally, Syed was able to elicit during cross-examination that the 



Furthermore, Detective McGilveary testified that Wilds was at times 

(continued...) 



32 



subject of his prior inaccurate statements to the police were discussed between 
him and the prosecution team. (2/10/00, 144, 155). Finally, Syed was also 
able to elicit many of the details concerning the retention of Wilds's attorney, 
Ms, Benaroya, in front of the jury so that the ultimate fact finders could 
independently assess whether Wilds thought he was receiving a benefit 
through her pro bono representation. (2/10/00, 1 56; 2/1 5/00, 39-40, 42, 51, 56- 
65, 127-28, 130-33) 

Finally, as to Syed's complaint that the plea agreement cannot be 
considered legally valid where Wilds had given prior inaccurate statements to 
police, whether or not the agreement was legally valid, or would be upheld on 
some subsequent challenge by Wilds, has absolutely no bearing on the 
question under the Sixth Amendment of whether Syed was able to confront a 
witness against him, nor does it show that the State suppressed exculpatory 
material information. The jury knew, over and over again, that Wilds lied to 
police when he was first questioned. That goes directly to considerations of 
Wilds's credibility. Whether he had entered into a legally binding plea 
agreement, as opposed to whether he knew he had to tell the truth in order to 
get the benefit of that agreement, was not relevant to establish bias, motive to 
falsify, or anything else bearing on Wilds's credibility. Thus, Syed's claims 
that there was a Brady violation and that the trial court restricted his cross- 
examination are simply without merit. 

C. The trial court properly exercised discretion in ruling that Syed 
could not call the prosecutor to testify regarding the same 
matters testified to bv Jay Wilds. 



. (...continued) 

inconsistent and had lied to police. (2/18/00, 133-35, 166-69). 



33 



Returning to the remainder of Syed's evidentiary complaints, in the 

middle of the second day of cross-examination of Wilds, Syed asked to voir 

dire Wilds outside the presence of the jury, and in the absence of Mr. Urick. 

(2/10/00, 162-64). Notably, Syed's counsel claimed that this information 

concerning whether Urick assisted Wilds in obtaining counsel was a surprise, 

but informed the court: 

I will confess to you I've thought this for a long time but never, 
ever once did I ever think that they would say it, that I would 
ever be able to prove it. 

THE COURT: It being? 

MS. GUTIERREZ: That in fact Mr. Urick, the prosecutor 
of both this witness and my client provided a private lawyer for 
a witness in connection with a plea bargain and that having done 
so revealed the plea bargain without revealing the true benefit of 
having a lawyer. 

(2/10/00, 162). 

The court ruled that Syed could continue to inquire along these lines 
with Wilds, but it would not hold a voir dire proceeding outside the presence 
of both the jury and the prosecutor. (2/10/00, 166). The next day at trial, 
further argument was heard on the matter, and Syed informed the court that he 
was not requesting a mistrial. (2/11/00, 7). Syed wanted to call the 
prosecutor, Mr. Urick, to testify in front of the jur>', and the court indicated 
that whatever information Syed wanted to obtain about the circumstances 
surrounding the plea agreement could be made by inquiring of Wilds's 
counsel, Ms. Benaroya, and not the prosecutor. (2/1 1/00, 9). Syed continued 



34 



to request that Mr. Urick take the stand in front of the jury. (2/1 1/00, 13)." 



Syed argued that providing Wilds with pro bono representation was a benefit, 

that went to the witness's credibility. (2/11/00, 12). The prosecutor responded 

that he believed that "assistance of counsel is a fundamental right under our 

constitution, hence it is not a benefit it is a right." The trial court disagreed 

with the prosecutor's argument that suggesting that Wilds obtain a certain 

counsel who would provide pro bono representation could not be perceived as 

a benefit, stating: 

As you said, but the benefit is still one which counsel could 
argue existed. Whether a jury, a finder of fact, believes in fact 
he benefited [sic], whether the finder of fact believes that if [sic] 
effects his credibility is an argument that Ms. Gutierrez will 
have and I do find that arguably it could be perceived as a 
benefit, could be. 

(2/1 1/00, 56). 

The trial court ruled: 

I find that there must be a compelling reason to call Mr. 
Urick as a witness in this case in order that you may be afforded 
the opportunity to challenge the credibility of Mr. Wilds with 
regard to any deal or benefit derived firom the State through the 
presentation I'll call it, of an attorney for Mr. Wilds. I also find 
that first you made an argument, a rather compelling 
presentation of facts. When I say compelling I mean that you 
have available to you through your very argument to this Court 
those items in evidence to challenged the credibility of Mr. 
Wild's testimony with regard to anything Mr. Urick may have 



^' Syed argued below, "It's a far different matter for the jury to hear 
Mr. Urick acknowledge that he got the lawyer for the man who's credibility 
is at the base of his case without which Judge, he has no case." (2/1 1/00, 13). 
Thus, contrary to Syed's argument on appeal, (App, Br., 50), it is apparentthat 
the trial counsel for Syed wanted this questioning to occur in front of the jury. 



35 



done to assist. The witness himself, Mr. Wilds provided you 
with that evidence and you readily used it in your argument to 
this Court. So I find that you have that availability. 

Secondly, you have the availability of calling Ms. 
Benaroya who I feel would offer you an additional opportunity 
to present evidence to attack the credibility of Mr. Wilds. For 
that reason I do not find a compelling reason to call or allow you 
to call Mr. Urick as a witness in ^is case and with that, with 
regard to that motion your motion is denied. . , . 

(2/11/00,22-23)." 

It has been held that "the trial court is afforded great deference in its 

rulings on admissibility of evidence and that rulings as to relevancy will not 

be disturbed on appeal unless there is a clear abuse of discretion." Ware v. 

State, 360 Md. 650, 672-73 (2000), cert, denied, 121 S.Ct. 864 (2001). 

Further, a trial court's exclusion of evidence based on lack of relevancy should 

not be disturbed unless the finding was an abuse of discretion. See Tuer v. 

McDonald, 112 Md. App. 121 (1996), aff'd, 2>An Md. 507 (1997); Holt v. 

State, 50 Md. App. 578, 581 (1982) (admission of evidence within the 

discretion of the trial court). Moreover, even if the proffered evidence was 

relevant, that would not prevent exclusion; 



Syed notes that the trial court later ruled that he could not call 
Benaroya, and cites to one page of the trial. (App. Br., 50-51). Notably 
missing from Syed's brief before this Court is any mention that the trial court 
conducted an entirely separate hearing on the precise issue whether Benaroya 
could be called, before ruling that Benaroya's testimony would not be relevant, 
and would be cumulative to the testimony that Wilds gave before the jury 
concerning the agreement, stating, in part: "I don't believe this witness offers 
us any additional information. I don't believe that even if it's relevant that it 
does anything more than to confuse the jury or could be used to confuse the 
jury." (2/18/00,46). 



36 



Although relevant, evidence may be excluded if its 
probative value is substantially outweighed by the danger of 
unfair prejudice, confusion of the issues, or misleading the jury, 
or by considerations of undue delay, waste of time, or needless 
presentation of cumulative evidence. 

Maryland Rule 5-403; see also Tipton v. State, 39 Md. App. 578, 585 (1978) 
(even if relevant, trial judge should weigh factors going to probative value, 
such as likelihood jury may be aroused by emotion or otherwise distracted; 
that evidence will consume an undue amount of time; and the danger of unfair 
surprise). 

Even if Urick's testimony were relevant, the trial court had the 

discretion to decide whether to permit that information to come in through the 

witness on the stand, Wilds, After all, it was Wild's credibility that was at 

stake, not the prosecutor's. Besides being cumulative to that testimony, it was 

likely that having the prosecutor take the stand in the middle of the murder 

trial, not to mention be subject to the order of sequestration, would confuse the 

issues and ultimately mislead the jury. Thus, the trial court properly exercised 

discretion in denying Syed's request to call the prosecutor to the stand. 

D. If preserved, the trial court properly denied Syed's motion to 
strike the testimony of Jay Wilds. 

Sailing onto another tack. Syed then sought to strike Wilds' s testimony, 

again based on the issue of how Wilds obtained legal counsel. (2/1 1/00, 31). 

The court denied the motion to strike, ruling: 

Motion to strike the testimony of Mr. Wilds is denied. 
However, I'm going to allow Counsel in closing argument to 
argue the credibility of Mr. Wilds being effected by anything 
that Mr. Urick may have done in assisting him in getting counsel 
and that is anything that came out through Mr. Wilds 's 
' testimony of what he believed, not what may in fact have 



37 



occurred, but what he believed happened. Because it's his belief 
that controls his credibihty, what he testified to, why he testifies 
in the way he testifies, why he signed the agreement and why he 
testified in this case. 

(2/11/00, 34).^^ 

There is no indication that Syed ever renewed this motion to strike 

following Wild' s continued cross-examination after this ruling on February 1 0, 

2000, nor on February 11,14, and 1 5, 2000. Thus, this issue is not preserved 

as to those trial dates. See Watkins v. State, 328 Md. 95, 99-1 00 (1992) (where 

a party acquiesces in a court's ruling, there is no basis for appeal fi^om that 

ruling); Grandison v. State, 305 Md. 685, 765, cert .denied, 479 U.S. 873 

(1986) ("By dropping the subject and never again raising it, [appellant] waived 

his right to appellate review"). Moreover, even if preserved, the claim is 

without merit. This Court has stated: 

Assuming, arguendo^ that the State violated the discovery 
rules, Maryland Rule 4-263(i) gives a trial court the discretion 
to fashion remedies for a discovery violation. The purpose of 
the discovery rules is to "assist the defendant in preparing his 
defense, and to protect him from surprise." 

Rosenbergv. State, 129 Md, App. 221, 259, cert, denied, 358 Md. 382 (1999); 
see also Johnson v. State, 360 Md. 250, 265 (2000) (scope of pretrial 
disclosure mandated by the Rule must be determined in light of these 
underlying policies). 



As noted in the Statement of Facts, Syed continued cross-examining 
Wilds for approximately rvvo and a half more days concerning these very 
matters. 



38 



Further, "[t]he question of whether any sanction is to be imposed for a 

discovery violation, and if so what sanction, is in the first instance committed 

to the discretion of the trial judge, and ... the exercise of that discretion 

includes evaluating whether the violation prejudiced the defendant." Evans v. 

State, 304 Md. 487, 500 (1985), cert, denied, 478 U.S. 1010 (1986); accord 

Williams v. State, 3 64 Md. 1 60, 1 78 (200 1 ). Here, it is clear that the trial court 

properly exercised discretion in denying the motion to strike because the issue 

of the plea agreement was already before the jury, and Syed elicited that the 

prosecutor may have assisted Wilds in obtaining counsel. (2/10/00, 156). 

Further, although Syed claimed surprised, at the bench conference, it is 

apparent that Syed was not surprised about the issue, but was surprised "that 

I would ever be able to prove it." (2/10/00, 162). The court fashioned an 

appropriate remedy, commensurate with any alleged violation, that allowed 

Syed to argue Wilds's credibility based on the arrangement, because it was 

Wilds's "belief that controls his credibility," (2/1 1/00, 34). Thus, the motion 

to strike was properly denied. 

E. The trial court properly exercised discretion in denying Syed's 
motion to compel. 

Syed then made another motion, requesting full disclosure of the 

manner in which Wilds selected legal representation. (2/11/00, 41-44). The 

court denied that motion as well, ruling, in part: 

The motion is denied. The information that you are seeking to 
contain [sic] would be information that Mr. Wilds would have 
a privilege, that is how he chose a lawyer, the circumstances 
under which he chose a lawyer. . . . 

(2/11/00,44). 



39 



Syed continued to argue that he wanted infonnation regarding the role 
Mr. Urick played in assisting Wilds obtain representation. (2/1 1/00, 46). The 
court stated: 

I understand your point, but as I stated before, I believe 
the infonnation you wish to obtain can be obtained from another 
source, is readily available to you and the sum of substance of 
which has already been provided to you to allow you to 
adequately challenge the credibility of Mr. Wilds 

(2/11/00, 47). 

It has been held that a trial court has inherent discretionary power to 

compel disclosure of infonnation in control of the State. See McKenzie v. 

State, 236 Md. 597, 602-03 (1964) (no abuse of discretion to deny request for 

disclosure at trial of written statements of prosecution witnesses, as there was 

no showing that statements in fact existed or that they were material to case).^* 

It is apparent in this case that the trial court did exercise discretion in 

considering whether to grant Syed's motion to compel discovery of this 

information. Indeed, in response to further argument on the matter by Ms. 

Gutierrez, the court crystal ized its ruling: 

But the sum of substance of the plea agreement is 
contained therein. You also have the testimony of Mr. Wilds. 
Although the infonnation that you have received by way of his 
testimony is one that has come through a course of a number of 
days. You've gotten it si.x or seven days ago on Friday, you got 
additional information yesterday and I find that you have an 
adequate amount of information in order so that you can one, 
prepare your defense and utilize the information. 



^"^ Additionally, although not a basis for the lower court's ruling, Md. 
Rule 4-263 (f) includes a time limit for filing motions to compel discovery, 
and also suggests that the parties negotiate in good faith prior to a court having 
to consider a motion to compel. 



40 



Two, challenge the credibility of the witness and utilize 
the information and three, fashion questions during your cross 
and in an attempt to get more information and four, if necessary, 
1 call an additional witness and have that additional witness 

provide you with additional information. So, I believe that all 
of those items are readily available to the Defense, I do not find 
that in any way it interferes with your client's due process rights 
or in any way interferes with his ability to have an effective and 
adequate representation by his attorney on this issue or that you 
have been in any way harmed by the delay in receiving some 
bits and parts of that information. That you still have the 
witness on the stand, that he still can be questioned, that the 
Court has given you latitude in that regard as well as latitude at 
some later point to view the tape which I have just directed Ms. 
Connelly to get because I understand it is available, that there's 
only one copy. I've also directed Ms. Connelly to get a video 
machine for your use and during the lunch and recess if you 
would like to view that tape it will be available for you do that 
and after reviewing the tape if you fell that there are some 
additional questions that the tape triggers you are welcome to 
ask those questions. 

But to the extent that I believe I have provided you with 
an opportunity to address these issue's and adequately defend 
your chent I don't believe his rights in any way have been 
abridged, interfered with or that his due process rights have been 
abridged or interfered with. That any notice requirements that 
arguably the benefit that appears to have developed through the 
testimony can be addressed adequately by your questions and 
the information that you've received at this time. 

(2/1 1/00, 48-50)." 



The court also granted Syed's motion to conduct a hearing whereby 
Wilds's counsel, Ms. Benaroya, would be questioned outside the presence of 
the jury. (2/11/00,50). After that hearing, the court found that Benaroya's 

(continued...) 



41 



F. The trial court properly exercised discretion in denying Syed's 
request to recall Wilds after five days of cross-examination, and 
in denying Sved's request to call Wild's attorney as a witness . 

Syed also asserts tiiat the trial court erred in not permitting him to recall 

Wilds to the stand and to call Wilds's attorney, Ms. Benaroya. (App. Br. 43). 

Following the five days of cross-examination of Wilds, the trial court 

conducted a hearing, outside the presence of the jury on Syed's request to call 

Benaroya. (2/18/00,2-54). Ms. Gutierrez was permitted to ask Benaroya how 

she came to represent Wilds. Benaroya testified that Mr. Urick had introduced 

her to Wilds, and Benaroya made the independent determination to represent 

Wilds. (2/18/00, 4). Benaroya explained that Urick did not ask her to 

represent Wilds, only to come and meet him. (2/18/00, 5-6), Benaroya 

testified: 

Not about representing him. I had about -just Mr. Urick 
had been really, perhaps deliberately vague about what he 
wanted me to do. He had asked me to come to the office and 
talk to the young man. That was really about the extent of it. 
He had not asked me to represent him. 

(2/18/00, 5-6). 

Benaroya told Wilds that she did pro bono work. (2/18/00, 7). During 
the t^^'o orthree hour conversation between Benaroya and Wilds, no one from 



^'(...continued) 

testimony was not relevant, would be cumulative, and would confuse the jury. 
(2/18/00, 46). This was an appropriate evidentiar>' ruling and the trial court 
property exercised its discretion in denying Syed's request to call Ms. 
Benaroya to the stand. See Md. Rule 5-403 (even relevant evidence may be 
excluded if probative value outweighed by "confusion of the issues, or 
misleading the jury, or by considerations of undue delay, waste of time, or 
needless presentation of cumulative evidence."). 



42 



the State's Attorney's Office bothered them. (2/18/00,12). Benaroyatestijfied 
she had no independent knowledge of the case other than what Wilds told her. 
(2/18/00, 6-7). Benaroya testified that when she spoke to Wilds, he had not 
yet been formally charged. (2/18/00, 13). When fonnal charges were filed, 
Benaroya was representing Wilds, (2/18/00,14). Benaroya told Wilds she 
would represent him pro bono. (2/18/00,15). At some point after she had 
decided to represent Wilds, Benaroya told Urick that she would be 
representing Wilds pro bono. (2/18/00, 15). 

Benaroya identified her signature on the plea agreement. (2/1 8/00, 24). 
Benaroya testified that the only change in the plea agreement was to boiler 
plate language in the standard form regarding narcotics cases, and this was not 
a narcotics case. (2/18/00, 25-26). Benaroya then testified that it was her 
understanding that there was a mutual right to withdraw the plea. (2/1 8/00, 
27). She testified that the State could withdraw the agreement if Wilds 
testified untruthfully at trial. (2/1 8/00, 28). It was also her understanding that 
Wilds could withdraw the plea, and that information was passed on to Wilds. 
(2/1 8/00, 32). Benaroya told Wilds he could withdraw the plea in a hearing in 
front of Judge McCurdy. (2/18/00, 33)." Benaroya testified that the in 
chambers hearing before Judge McCurdy was to address Wilds's concerns, 
and that "if this gentleman did not want to continue in this, he had absolutely 
the right to withdraw the plea and he would be put right where he was before 
he had met me." (2/18/00, 34-35). At the conclusion of this hearing. Wilds 



Pursuant to Md. Rule 4-242 (g), "[a]t any time before sentencing, the 
court may permit a defendant to withdraw a plea of guilty or nolo contendere 
when the withdrawal serves the interests of justice." 



43 



wanted to continue pursuant to the plea and wanted Benaroy a to remain as his 

attorney. (2/18/00,35-36). 

Ms. Gutierrez then began inquiry into privileged communications 

between Benaroya and Wilds, and the court interrupted, informing Benaroya, 

who had been sequestered as a witness called by the defense, that her client 

had not waived his attorney-client privilege. (2/1 8/00, 39-40). Syed's counsel 

then began questioning Benaroya on whether withdrawal of the plea by Wilds 

was some sort of "side" agreement, and the court found that Benaroya's 

testimony would be cumulative and irrelevant. The court ruled, in part 

Everything that you're talking about is already in front of 
the jury. In fact, the "it smelled fishy" is in front of the jury, and 
this witness - 

MS. GUTIERREZ: No, Judge. I think if you let me 
continue, what this witness will say is that she negotiated that 
benefit, the right to absolutely withdraw the plea at his option, 
with Mr. Urick on the T^ 

THE COURT; It's already before the jury. 

MS. GUTIERREZ: No, Judge, it is not. 

THE COURT: The defendant's - 

MS. GUTIERREZ; Mr. Wilds did not testify to that. 

THE COURT: Mr. Wild's understanding of the plea, the 
plea that doesn't exist, the plea that's not really a guilty plea, the 
plea where the statement of facts has not been entered, the one 
that really isn't a guilty plea even if we want to call it a guilty 
plea, that thing, that hearing he believes it to be a guilty plea. 

He believes it was hearing based on a truth agreement. 



44 



MS. GUTIERREZ: Just I'm not disputing - 



THE COURT: And all of that is in front of the jury. It's 
all there. You already have it. It's in, you can argue it. 

MS. GUTIERREZ: Judge, the deal is not there, the plea 

agreement is before the jury as being the only deal that obligates 
Mr. Urick and Mr. Wilds. And that is a He. And the lie is not 
in front of the jury. That is, that there is a little side deal that 
was negotiated at the same time as the plea. 

THE COURT: Ms. Gutierrez, that is not a side deal 
because, as a matter of law, as a matter of law, it doesn 't matter 
what Mr. Urick and Ms. Benaroya and the defendant agreed to. 
The Court is not bound by his piece of paper. The Court is 
bound by the law. 

And the law says that if it was a guilty plea, if it was a 
guilty - and I say "if," - if it was a guilty plea, the law says he 
can withdraw it. And Mr. Urick can't give a benefit that he 
doesn't have to give. It's not his benefit. 

(2/18/00, 42-44) (emphasis added). 

Syed continued to request that Benaroya be called as a witness to testify 

concerning negotiations over the plea agreement. The court concluded: 

I don't believe this witness offers us any additional information. 
I don't believe that even if it's relevant that it does anything 
more than to confuse the jury or could be used to confuse the 

jury- 

And for that reason, I don't believe that it's going to be 
appropriate and it is not going to be permitted in this case. 

(2/18/00, 46). 

The next trial date, Syed informed the court that he wanted to recall 
Wilds for further examination. (2/22/00, 61). Syed wanted to inquire whether 



45 



Wilds could withdraw his plea agreement after September 7, 1999, which Syed 



continued to argue was a "side deal" and a benefit of the bargain. (2/22/00, 

63-65). The court ruled that all the appropriate information there was to be 

had about the plea agreement was before the jury: » 

As I indicated previously, I believe that calling Ms. 
[Benaroya] would not be appropriate and it would just take us 
off on a needless presentation of evidence. And I would find 
that the credibility of Mr. Wilds has been exhausted. The ability 
to cross-examine him and bring out those things that might have 
affected his testimony and his credibility was done, and I believe 
that clearly it was what was in the mind of the Defendant at the 
time that he - the Defendant meaning Wilds - entered into this 
agreement, and he testified as to that. He's not a lawyer, he 
doesn't know what the Rules of Maryland provide, that even 
with a guilty plea and even if he signed something, that a judge 
could allow him to withdraw his plea under circumstances 
where the Court determined it would be appropriate 

(2/22/00, 74)." 



Wilds testified before the jury previously that he understood the plea 
agreement to be a "truth agreement," and that if he held up his end of the deal, 
the State would recommend a certain disposition. (2/4/00, 163, 217) He 
testified that he understood that if he held up his end of the bargain, the State 
would recommend a sentence of five years, with all but two years suspended, 
and that, if the State was not satisfied, it would recommend five years in prison 
for Wilds. (2/15/00, 121-23). He also testified before the jur>' that at some 
point. Judge McCurdy did ask Wilds if he wanted to withdraw the plea 
agreement. (2/1 1/00, 202, 208-09). Wilds testified he did not indicate that he 
wanted any such alteration or withdrawal of the plea. (2/1 1/00, 1 62-63). It is 
apparent that by these responses Wilds believed he had entered into a valid 
plea agreement, and that, by the fact of Judge McCurdy asking if he wanted to 
withdraw the plea, that he knew he could withdraw if he so chose. Thus, all 
these facts were before the jur>'. 



46 



It is clear that the trial courtproperly exercised discretion in considering 
whether Syed could call Benaroya and recall Wilds. The court conducted a 
hearing outside the presence of the jury, and at the conclusion, determined that 
Benaroya 's testimony added nothing to the case that was not already before the 
jury. See Md. Rule 5-403 (even relevant evidence may be excluded if 
probative value outweighed by "confusion of the issues, or misleading the 
jury, or by considerations of undue delay, waste of time, or needless 
presentation of cumulative evidence."). Further, as to Syed's repeated 
insistence that there was some sort of "side deal" whereby Wilds could 
withdraw his plea at any time, the law specifically allows withdrawal of a 
guilty plea at any time before sentencing in "the interests of justice." Md. Rule 
4-242 (g). Because the law permits withdrawal of a plea, that is not a benefit 
that requires disclosure, and the trial court properly exercised its discretion in 
denying Syed's request to recall Wilds and to call Benaroya. See Thomas v. 
State, _ Md. App. No. 255, Sept. Term, 2001 (filed March 1, 2002) (slip 
op. at 9) (the conduct of the trial "must of necessity rest largely in the control 
and discretion of the presiding judge," and an appellate court should not 
interfere with that judgment unless there has been error or clear abuse of 
discretion) (citing Wilhelm v. State, 111 Md. 404, 413 (1974); Simpson v. 
State, 121 Md. App. 263, 283 (1998)); see also Oken v. State, 327 Md. 628, 
669 (1992) ("the scope of examination of witnesses at trial is a matter left 
largely to the discretion of the trial judge and no error will be recognized 
unless there is a clear abuse of discretion"), cert, denied, 501 U.S. 93 1 (1993). 



47 



G. The trial court properly denied Syed's request to call Elizabeth 
Julian as a witness to testify to the process by which a charged 
defendant applies for representation from the Public Defender . 

Syed next argued that he wanted to call Ms. Elizabeth Julian, a member 

of the Office of the Public Defender, in order to testify that it was unusual for 

a prosecutor to recommend a lawyer for a State's witness. (2/23/00, 217). 

The court clarified, again, the testimony at trial. (2/23/00, 219). The court 

reiterated that Wilds testified he had contacted the Public Defender's Office 

before he was charged and was informed they could not represent him until he 

was charged. (2/23/00,219). The court then indicated there was no further 

testimony by Wilds that he ever tried to contact the Public Defender's Office 

again. (2/23/00, 219). Syed then misrepresented the testimony, as he does on 

appeal, and claimed that the day he came to enter the plea, "a lawyer was 

provided to him by a prosecutor." (2/23/00, 219; App. Br. at 48). The court 

stated, "[t]hat wasn't what the testimony was." (2/23/00, 219). The facts 

established that Benaroya had not decided whether or not to represent Wilds, 

and Wilds had not decided at that time to accept Benaroya as his attorney, 

(2/23/00, 219). The trial court disagreed with Syed's characterization and 

stated, "to say that the State provided the lawyer assumes Mr. Wilds had no 

say in the decision." (2/23/00, 220). The court also noted that perhaps Ms. 

Julian's testimony would have been relevant "[i]f they called the public 

defender," and Wilds "didn't call the public defender." (2/23/00, 222). 

Further argument on the matter ensued, with Syed's attorney arguing that even 

the fact of the prosecutor introducing Benaroya to Wilds and vice versa was 

unusual, and that Ms. Julian would testify as to the manner in which 



48 



defendants charged with crime seek representation from her office. (2/23/00, 
230-32). The trial court denied the request, ruling: 

» Well, I think you're absolutely right, it doesn't resolve 

the issues, and I think the issues that we're discussing right now 

^ are for another day and another proceeding. It has nothing to do 

with Mr. Syed because I don't find that asking Ms. Julian any 
questions about what could have happened, what might have 
happened, what should have happened on a day that did not 
occur because Mr. Wilds did not choose to utilize the Office of 
the Public Defender - he did not choose to do that, that was his 
decision. He's testified already about his decision and why he 
made it and was cross-examined at length about why he did that. 



For Ms. Julian, who had no contact with Mr. Wilds, to 
come in and talk about what could have, should have, might 
have happened had Mr. Wilds decided to make application to 
the Public Defender's Office is not relevant to this proceeding 
because he did not decide to do that. In fact, he decided not to 
do that by his decision to take the attorney that he interviewed, 
he questioned, and decided that he wanted. And to have Ms. 
Julian come in serves no purpose in the interest of justice or a 
furtherance of this case. . . . 

(2/23/00, 237-39). 

Ms. Gutierrez continued to argue the trial court's ruling, and the trial 

court responded as follows: 

THE COURT: Why don't I state it very cleariy? 
Whether or not the prosecutor having a defense attorney in his 
office through which a defendant might decide or not to decide 
to utilize the pro bono services of that lawyer, and that lawyer 
deciding to or not to represent that defendant, that circumstance 
being rare or not might be relevant, but I am finding is going to 
be excluded because I find that the probative value is 
substantially outweighed by confusing the issues and misleading 
the jury. It also is needless presentation of what I find to be 



49 



cumulative evidence. You have the facts in front of you which 
you can argue in closing. 

MS. GUTIERREZ: Does the Court - 

THE COURT: You have the fact that Mr. Urick was 
there. You have the fact that Mr. Wilds decided at the same 
time that he was presented with the plea agreement. You have 
the fact that he read through that and Ms. [Benaroya] was there. 
She was available. He decided, after talking to her and meeting 
with her, for whatever reason, to have her as his lawyer. You 
have before the jury all of that information which you can argue 
whatever inferences you want to argue are established by that 
evidence. You can argue that that's a benefit. You have the 
plea agreement which talks about the role of the state's attorney. 
You have the fact that it's signed by Mr. Urick and you can 
argue all the clauses that allow the State to do whatever the State 
could do if they don't like the way Mr. Wilds testified, and all 
the things that are contained. 

All of that evidence you currently have before you by the 
witnesses who have testified. If you want to argue that, you are 
well within your right to argue that in closing, but you're not 
going to bring in collateral witnesses who don't have any 
personal knowledge to add to those facts, who have never talked 
to Mr. Wilds on this issue, nor Ms. [Benaroya] on this issue, 
who have no first hand knowledge. 

And, in fact, whether this be rare or not, I find that even 
if it's relevant that it's rare, the evidence may be used 
improperly by this jury. So that the inferences stand as what 
they are and they can be argued by you or by the State or by 
both of you. 

(2/23/00, 241-43). 

Ms. Gutierrez continued to argue over the court's ruling and indicated 
that Ms. Julian would be called to testify that the introduction of Benaroya to 



50 



Wilds was "rare." (2/23/00, 244). The court issued a final ruling on whether 

it would permit Syed to call Ms. Julian: 

s In order to assist counsel, let me make myself clear. Any 

witness that talks about the rareness of the procedure used in 
obtaining a lawyer that was present in the State's Attorney's 
Office and available to a defendant is not going to be admitted 
in this case, it will be excluded under 5-403. 

Wilds testified before the jury that he spoke with the Public Defender's 
Office, but they would not provide him with representation until he had been 
charged. (2/15/00, 39-40). He explained that on the day that he met the 
prosecutor, the prosecutor informed him that he had someone he wanted Wilds 
to meet. (2/1 5/00, 58-59). After meeting with Benaroya, Wilds testified that 
he felt he had a choice in selecting his own attorney. (2/15/00, 148). 

Further, as to any concern that the introduction between Wilds and 
Benaroya was rare, such an inference could have been properly drawn by 
Wilds 's own testimony that he initially thought, after the plea hearing, that 
something "smelled fishy."(2/l 5/00, 1 30-33). The jury heard Wilds testify 
that, at some point, he thought Urick had provided him with a lawyer. 
(2/1 5/00, 127-28). Wilds also testified that he thought there might have been 
a conflict, and that, he was unsure if Benaroya had been brought in more for 
the prosecutor's benefit than for his. (2/15/00, 130-33). At the end of the day, 
however, Wilds was satisfied with Benaroya's representation. (2/1 5/00, 148). 

There is no indication that Wilds ever contacted the PubUc Defender's 
Office after he was charged, and after he selected Benaroya to represent him. 
Thus. Ms. Julian's proffered testimony concerning the procedures by which a 
criminally charged, financially eligible, individual applied to the Public 
Defender's Office for representation was not relevant where Wilds did not 

51 



fonnally apply after he had been charged. Moreover, as for whether or not the 

procedure was "rare," the jury had before it testimony from Wilds himself that 

he thought, at some point, that things "smelled fishy." Ultimately, the trial 

court's decision pursuant to Md. Rule 5-403 in denying Syed's request to call 

Ms. Julian, a person with absolutely no personal knowledge of the case, was 

a proper exercise of discretion. 

H. There was no prosecutorial misconduct in Syed's trial and Syed 
was not prejudiced by any belated disclosures of information 
concerning State's witness. Jay Wilds. 

Finally, the last matter left unaddressed in this first issue is whether the 

prosecutor's actions herein constituted prosecutorial misconduct. This Court 

recently held: 

With respect to prosecutorial misconduct generally, 
actual prejudice must be show before the sanction of dismissal 
or reversal of a conviction can be properly imposed. See Bank 
of Nova Scotia v. United States, 487 U.S. 250 (1988); United 
States V. Hasting, 461 U.S. 499 (1983); United States v. 
Brockington, 849 F.2d 872 (4'^ Cir. 1988). Even deliberate or 
intentional misconduct may not serve as grounds for dismissal 
absent a finding of prejudice to the defendant. See United States 
w Derrick, 163 F.3d 799 (4'" Cir. 1998). 

State V. Deleon, __ Md. App. No. 866. Sept. Term, 2001 (filed April 3, 
2002) (slip op. at 28). 

Here, there was no actual prejudice because Syed was provided more 
than ample opportunity to cross-examine Wilds over five days of examination 
and was able to elicit all relevant information concerning the plea agreement 
and the manner in which he was introduced to Ms. Benaroya. In sum, the trial 
court properly exercised discretion in its evidentiary rulings with respect to Jay 



52 



Wilds, and there was no Brady violation given that all issues argued on appeal 
by Syed were completely before the jury prior to deliberations. 

II. 

THE TRIAL COURT PROPERLY EXERCISED 
DISCRETION IN PERMITTING A WITNESS TO READ A 
PORTION OF A LETTER WRITTEN BY THE VICTIM AND 
ADDRESSED TO SYED. 

In his second issue presented, Syed claims that the trial court erred in 
permitting a witness to read a letter from H^e Lee to Syed, on the ground that 
"[t]he hearsay letter of the victim allegedly written over two months before her 
disappearance does not fall under any exception to the hearsay rule." (App. 
Br. 53-54). This argument is without merit. 

At trial, Aisha Pittman, a friend of both Hae Lee and Syed, testified that 
the front of State's Exhibit 38 was a letter from Hae to Syed, and the back of 
that letter contained notes between Syed and Pittman. (1/28/00, 242-243).^^ 
After the exhibit was identified by Pittman, and when the State moved to 
introduce the letter, Syed objected generally to its admission. (1/28/00, 243), 
The trial court noted the objection, then asked that a time frame be established 
as to when the letter was written. (1/28/00, 243). Pittman testified the letter 
was written early November. ( 1 /28/00, 244). The letter was admitted over 
objection. (1/28/00, 244). When the State asked to read the letter, Syed again 

Pittman testified that the handwriting in pen on the back was Syed's, 
and that the handwriting in pencil was hers. (1/28/00,243). Written in pen on 
the back was "I am going to kill." ( 1 /28/00, 248). Pittman testified that phrase 
was not on the back of the letter when she was writing notes back and forth to 
Syed. (1/28/00, 253). On appeal, Syed does not challenge the admissibility 
of the back of the letter. Syed's complaint is as to the writings by the victim, 
Hae Lee. 



53 



objected to the witness reading the letter and preferred that the jurors be 

permitted to read it. (1/28/00,245). The court permitted the witness to read 

from the exhibit. (1/28/00, 245-46).'' 

Pittman then read from the front of the letter as follows: 

A. "Okay. Here it goes. I'm really getting annoyed that 
this situation is going the way it is. At first I kind of wanted to 
make this easy for me and for you. 

"You know people break up all the time. Your life is not 
going to end. You'll move on and I'll move on. But apparently 
you don't respect me enough to accept my decision. 

"I really couldn't give damn [sic] about whatever you 
want to say. With the way things have been since 7:45 am this 
morning, now I'm more certain that I'm making the right 
choice. 

The more fuss you make, the more I'm determined to do 
what I gotta do. I really don't think I can be in a relationship 
like we had, not between us, but mostly about the smff around 
us. 

I seriously did expect you to accept, although not 
understand. I'll be busy today, tomorrow, and probably till 
Thursday." 

THE COURT; Is there something that you cannot read? 



" Although Syed did not specifically object on the grounds of hearsay, 
it is apparent that the general objection preserves the issue for appeal. See 
State V. Jones, 138 Md. App. 178, 218 (2001J (if ageneral objection is made, 
and neither the court nor a rule requires otherwise, it "is sufficient to preser\'e 
all grounds of objection which may exist") (quoting Grier v. State, 351 Md. 
241, 250 (1998)), cert, granted, 365 Md. 266 (2001) (argued December 3, 
2001)." 



54 



THE WITNESS: There is. 



THE COURT: Then say, "There's something I cannot 

? read." 

THE WITNESS: There's something I can't read. "Other 
things to do. I better not give you any hope that we'll get back 
together. I really don't see that happening, especially now. 

I never wanted to end like this, so hostile and cold, but I 
really don't know what to do. Hate me if you will, but you 
should remember that I could never hate you." 

Signed, "Hae." 

(1/28/00, 246-47). 

Here, the letter was admissible under two alternate theories: (1) it was 

nonhearsay entered to show that Hae Lee and Syed had been in a prior 

relationship; and/or (2) it was evidence tending to show Hae Lee's future 

action of ending that relationship under Maryland Rule 5-803 (b) (3). Hearsay 

is defined as "a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the 

matter asserted." Maryland Rule 5-801 (c). An out-of-court statement is 

admissible if it is not being offered for the truth of the matter asserted or if it 

falls within one of the recognized exceptions to the hearsay rule. Conyers v. 

Slate, 354 Md. 132, 158 (1999). In Conyers, the Court quoted from McLain 

on Evidence and stated that: 

Statements offered, not to prove the truth of the matters asserted 
therein, but as circumstantial evidence that the declarant had 
s knowledge of or believed certain facts or had a particular state 

of mind, when that knowledge, belief, or state of mind is 
relevant, are nonhearsay. 

55 



Conyers, 354 Md.a.t 159. 

Only if the statement is offered for the truth of the thing asserted is the 
credibility of the declarant called into question. Holland v. State, 122 Md. 
App. 532, 544, cerL denied, 351 Md. 662 (1998). Thus, if a statement is not 
offered for the truth of the matter asserted, the credibility of the declarant is 
irrelevant, and the admission of the statement does not implicate the 
Confrontation Clause. An out-of-court statement is nonhearsay if it is offered 
as narrative background or to explain a witness's actions. See, e.g., Holland, 
122 Md. App. at 542 (the recounting of the statement, "[t]here they are," viras 
nonhearsay and simply provided narrative background as to why the police 
officer arrested the appellant when he did); Williams v. State, 99 Md. App. 
71 1 , 725 (1994) (witness's recounting of statement made by flie person being 
arrested would have been nonhearsay if offered to show the circumstances 
surrounding the attempted arrest at issue), ajf'd on other grounds, 344 Md. 358 
(1996). 

Here, the letter established circumstantially that Syed and Hae Lee were 
in a boyfiiend/girlfiiend relationship. That they were in a relationship that 
ended tends to show, circumstantially, that Syed had a motive to kill Lee. 
"Motive is the catalyst that provides the reason for a person to engage in 
criminal activity." Snyderw Stare, 361 Md. 580, 604 (2000) (evidence thatthe 
petitioner and victim had a "stormy" relationship, and that there was a fight 
between the two one night before the murder was "probative of a continuing 
hostility and animosity" toward the victim and therefore, of motive to murder); 
see also Brown v. State, 359 Md. 180, 184 (2000) (finding that purpose of 
murdering pregnant mistress was not wanting wife to discover infidelity); 
Watkihs v. State, 357 Md. 258, 261-62 (2000) (determining that purpose of 

56 



robbery was greed); Johnson v. State, 2>2>1 Md. 456, 471 (1993) ("Like intent, 
motive is a mental state, the proof of which necessarily requires inferences to 

s be drawn from conduct or extrinsic acts."); Jones v. State, 1 82 Md. 653(1 944) 

(evidence of previous quarrels and difficulties between a victim and a 

defendant is generally admissible to show motive) 

Furthermore, the letter was admissible to show Hae Lee intended to end 

the relationship between herself and Syed. Maryland Rule 5-803 (b) (3) 

provides for an exception from the hearsay rule for : 

[a] statement of the declarant's then existing state of mind, 
emotion, sensation, or physical condition (such as intent, plan, 
motive, design, mental feeling, pain, and bodily health), offered 
to prove the declarant's then existing condition or the 
declarant's future action, but not including a statement of 
memory or belief to prove the fact remembered or believed 
unless it relates to the execution, revocation, identification, or 
terms of declarant's will. 

This exception "is not monolithic, but embraces two subspecies: 1) a 
declaration of present mental or emotional state to show a state of mind or 
emotion in issue, and 2) a declaration of intention offered to show subsequent 
acts of declarant." Gray v. State, 137 Md. App. 460, 500 (2001) (quoting 

Robinson v. State, 66 Md. App. 246, 257 (1986)), rev'd on other grounds, 

Md. _, No. 37, Sept. Term, 2001 (filed April 1 1 , 2002). "Generally speaking, 
the scope of examination of 'witnesses at trial is a matter left largely to the 
discretion of the trial judge and no error will be recognized unless there is an 
abuse of such discretion." Oken v. State, 327 Md. 628, 669 (1992), cert, 
denied, 507 U.S. 93 1 (1993). The textbook case on future intent isMutualLife 
Insurance Co. v. Hillmon, 145 U.S. 285 (1892), wherein the Supreme Court 
held: "The existence of a particular intention in a certain person at a certain 



57 



time being a material fact to be proved, evidence that he expressed that 
intention at that time is as direct evidence of the fact as his own testimony that 

he then had that intention would be." Id. at 295. In McCray v. State, 305 Md. 

126 (1985), the Court of Appeals reaffirmed that: 

evidence of declarations of a plan, design or intention presently 
entertained by the declarant is, subject to the usual limitations as 
to remoteness in time and apparent sincerity common to all 
declarations of mental state, admissible when offered as 
evidence that the design was carried out by acts or omissions of 
the declarant. 

Id. at 140; see also Lynn McLain, Maryland Rules of Evidence § 5-803, at 237 
(1994) (Rule 5-803 codifies Hillmon in that "it approves the admissibility of 
the declarant's statement of intent, to prove the declarant*s future actionf.]"; 
Kirkland v. State, 75 Md. App. 49, 55-56 (1988) ("The Hillmon Doctrine 
allows the trial court to admit [defendant's] statement as circumstantial 
evidence that he carried out his intention and performed the act."). 

This Court has stated that "[ujnder this exception, certain forward- 
looking statements of intent are admissible to prove that the declarant 
subsequently took a later action in accordance with his stated intent." Farah 
V. Stout, 112 Md. App. 106, 119 (1996), cen. denied, 344 Md. 567 (1997); 
Carlton v. State, 1 1 1 Md. App. 436, 445 (rule retains common law hearsay 
exception for "statements of a declarant's present state of mind that looks to 
the future"), cert, denied, 344 Md. 328 (1996); see also Gray, 137 Md. App. 
at 500 (murder victim's statements of "her then-existing intention to tell 
[defendant] that she wanted a di\"orce were admissible to prove that she did 
so."); Case v. State, 118 Md. App. 279, 283-85 (1997) (evidence that victim 



58 



had made statements that indicated her fear of appellant were relevant and 
admissible on issue of whether victim's death was an accident or a homicide). 

' Thus, the letter tended to establish that Hae Lee carried through with 

her statements and did, in fact, end the relationship with Syed. The fact that 
there may be other evidence which also established that Syed and Lee ended 
their relationship is of no moment. "Evidence is relevant (and/or material) 
when it has a tendency to prove a proposition at issue in the case." Johnson 
V. State, 332 Md. 456, 474 n.7 (1993). Further, a ruling on the relevance of 
evidence is "a matter which is quintessentially within the wide discretion of 
the trial judge." Best v. State, 79 Md. App. 241, 259, cert, denied, 317 Md. 
70 (1989); see also Snyder v. State, 361 Md. 580, 591 (2000) ("[A] party 
seeking to establish the relevancy of proffered evidence does not have to 
demonstrate that the evidence is weighty enough to carry that party's burden 
of persuasion."); Ware v. State, 360 Md. 650, 672-73 (2000) (holding that 
statement by appellant asking person if he was "bulletproof," was properly 
admissible), cert, denied, 121 S.Ct. 864 (2001). Here, the letter was probative 
to an issue in the case, whether Syed had a mptive to strangle Hae Lee to death 
based on the end of their relationship. The trial court properly exercised its 
discretion in admitting the evidence. 

Moreover, any error was harmless beyond a reasonable doubt. See 
Dorse)' v. State, 276 Md. 638, 659 (1976) (error will be harmless when 
reviewing court, upon independent review, is able to declare a belief beyond 
a reasonable doubt that there is no reasonable possibility that the error 
contributed to the verdict). The fact that there was a prior relationship between 
Syed and Hae Lee, a relationship which was established repeatedly throughout 
the trial by other evidence. (1/28/00, 140-41, 217-24; 1/3 1/00, 25-27; 2/3/00, 

59 



85-88; 2/16/00, 298-305; 2/17/00, 6-14, 24-30, 34-57, 119-21, 260-65; 
IIIVQO, 142). Additionally, that they broke up prior to the murder, in part due 
to differences over religion, was also repeatedly established at trial. (1/28/00, 
140-42, 145, 218, 221-25; 1/31/00, 30-31; 2/3/00, 88; 2/16/00, 300-01; 
2/17/00, 37-62; 2/23/00, 144-45). Thus, any error in letting the witness read 
the letter was haimless beyond a reasonable doubt. 

III. 

IF PRESERVED, THE TRIAL COURT PROPERLY 
EXERCISED DISCRETION IN ADMITTING THE VICTIM' S 
DIARY INTO EVIDENCE. 

Syed's final contention on appeal is that the court erred by admitting 
Hae Min Lee's diary. (App. Br. 55). The issue is not preserved, and is 
without merit in any event. At trial, Hae Min Lee's brother. Young Lee, 
testified that State's Exhibit Number 2 was Hae Lee's diary. (1/28/00, 31). 
The diary was offered into evidence, without objection. (1/28/00, 32). Thus, 
this issue simply is not preserved for appellate review. See MA. Rule 4-323 (a) 
(requiring a timely objection when evidence offered); Conyers v. State, 354 
Md. 132, 149-50 (1999) (relying on Rule 4-323 which describes the proper 
method for making objections at trial), cert, denied, 528 U.S. 910 (1999); see 
also Caviness v. State, 244 Md. 575, 578 (1966) (observing that "unless a 
defendant makes timely objections in the lower court or makes his feelings 
known to that court, he will be considered to have waived them and he can not 
now raise such objections on appeal"); Davis v. State, 189 Md. 269, 273 
(1947) ("[S]ome objection [must] be made and ... the court [must] rule upon 
the question. In the absence of such a ruling there is nothing for the Court of 
Appeals to review."); Leuscliner v. State, 41 Md. App. 423, 436 (1979) 



60 



(holding that "[i]t is axiomatic that to preserve an issue for appeal some 
objection must be made or a party will be deemed to have waived an 
4 objection"); Gaylord v. State, 2 Md. App. 57 1 , 575 ( 1 967) (declaring that "a 

defendant in a criminal prosecution cannot raise for the first time on appeal an 
objection which was available to him at the trial and which he did not raise 
below). 

Syed seeks to argue that the claim is preserved where, nineteen days 
later, counsel objected to a witness's reading of portions of the diary. (App. 
Br. 56-57).^" Syed's objection to the witness's reading of excerpts from the 
diary is a general objection, and there is no indication why, nineteen days after 
the diary had been admitted without objection, Syed was objecting on this 
occasion. Nevertheless, even if a general objection was sufficient, general 
objections must still be timely. See Md. Rule 4-323 (a); Conyers, 354 Md. at 
149-50; see also Vandegrift v. State, 82 Md. App. 617, 637-38 (objection to 
introduction of chemist's report came too late since a witness had already 
testified to its contents without objection), cert, denied, 320 Md. 801 (1990); 
Grant v. State, 76 Md. App. 165, 171-72 (1988) (although counsel objected on 
the grounds of hearsay by the time the evidence was offered into evidence, 
three other witnesses had already testified as to its contents), rev 'd on other 
grounds, 318 Md. 672 (1990); Holloway v. State, 26 Md. App. 382, 389-96 
(although error to admit third statement, since two earlier statements entered 



Syed also indicates that the issue of the diary was before the lower 
court based on the State's pre-trial motion to admit excerpts from the diary. 
(App. Br. 58). Notably, that motion was filed before the first trial, and, in that 
first trial, Syed indicated he had no objection to the admission of the diary, so 
long as it was admitted in its entirety. (12/8/99, 9). 



61 



without objection, any error was harmless beyond a reasonable doubt), cerL 
denied, 276 Md. 745 (1975).'' 

Additionally, Syed points to an entirely different exchange, not dealing 
whatsoever with the diary, concerning the question of whether Hope Schab ' s >■ 
testimony as to what Hae Lee told her, and what Syed told her, was 
inadmissible hearsay. (App. Br. 58). Syed's complaint with respect to 
Schab' s testimony is that "the trial court previously ruled that hearsay of the 
victim is admissible," (App. Br. 57). Syed objected to Schab' s testimony on 
the grounds of hearsay, that it was remote, that it was prejudicial, and that it 
was not relevant to establish motive. (1/28/00, 135-37).^^ First of all, Syed's 
objection to Schab 's testimony is not even remotely an objection to the 
admissibility of the diary. See Klauenberg v. State, 355 Md. 528, 541 (1999) 
("It is well-settled that when specific grounds are given at trial for an 
objection, the party objecting will be held to those grounds and ordinarily 
waives any grounds not specified that are later raised on appeal" ). The 



Moreover, and not mentioned by Syed in his brief, although during 
this exchange with Warren, Syed objected to reading of the excerpts from May 
14, 1998 and May 15, 1998, there was no objection when Warren read from 
other excerpts, including januar>' 2, 1999, January 6, 1999, and January 12, 
1999. (2/16/00, 305-1 1; 2/17/00, 138). This is further evidence of waiver of 
the issue. 

Notably, Syed does not cite the passage where counsel argued 
Schab's testimony concerning whether Hae Lee and Syed ended their 
relationship at Halloween was to tenuous to establish motive because "their 
own evidence that they've already put in indicates that they were still and item 
-the diary of Hae Min Lee - that they were still an item far into the third week 
of December, a period long past the time period that he's speaking of" 
(1/28/00, 135). This passage further supports Appellee's position that Syed 
did not object to admission of the diary at trial. 



62 



testimony of Schab came &fter the diary had been admitted without objection. 
Even if it somehow could be considered related, it is still an untimely objection 
and does not preserve the issue of whether the diary previously admitted 
without objection was admissible. See Grant, supra, 76 Md. App. at 171-72; 
see also Vandegrift, supra, 82 Md. App. at 637-38; Holloway, supra, 26 Md. 
App. at 389-96. Finally, Syed himself introduced evidence from the diary 
during his cross-examination of Deborah Warren. (2/17/00, 93-94). See Hunt 
V. State, 321 Md. 387, 433 (1990), ceit. denied, 502 U.S. 835 (1991) ("a party 
waives his objection to testimony by subsequently offering testimony on the 
same matter"). Thus, the issue of admissibility of the victim's diary is not 
even remotely preserved for appellate review. 

Moreover, even if preserved, the argument is without merit. On appeal, 
Syed points to no specific passage in the diary which he argues was hearsay; 
instead he argues generally that several passages "reflect in great detail Hae's 
feelings for Appellant, and how she was in love with Appellant, her own fear 
of being apart from him, and her anguish over the fact that dating is against 
Appellant's religious beliefs." (App. Br. 60). Syed's complaint is that these 
non-specified "entries" constitute inadmissible hearsay. (App. Br. 61). 

In support of that argument, Syed relies upon Banks v. State, 92 Md. 
App. 422 (1992). Although Banks does discuss whether statements of a fear 
by a victim constitute, inter alia, nonhearsay, one of the bases for admission 
of the diary, the Maryland Rule which was at issue in Banks was Md. Rule 5- 
803 (b) (1), dealing with present sense impressions, and not Md. Rule 5-803 
(b) (3), concerning then existing mental, emotional, or physical condition, the 
exception at issue in the case sub judice. Banks, 92 Md. App. at 436. 



63 



In Banks, the State attempted to introduce statements of the "victim at 
various times prior to his death, of fear of his killer." Banks, 92 Md. App. at 
426. The State argued that the statements were admissible as "verbal acts," as 
nonhearsay to show the state of mind of the victim at the time he was stabbed, 
or as present sense impressions, pursuant to a different subsection of Md. Rule 
5-803, and thus an exception to the rule against hearsay. Id. at 432-36. This 
Court rejected the argument that the statements of fear of appellant were verbal 
acts, because verbal acts are "operative legal facts which constitute the basis 
of a claim, charge or defense," and the fact that the victim made the 
statements, withoutmore, did not establish their relevance. Id. at 432-33. This 
Court also ruled that, under the nonhearsay argument, even if the statements 
were not offered for their truth, but rather of the victim's state of mind 
establishing fear of appellant, the evidence of the victim's fear was irrelevant 
to the conimission of the crime. Id. at 434-35. Finally, this Court rejected the 
notion that the statements established the present sense impression exception 
to hearsay because most of the statements at issue did not concern present 
sense impressions, and in the one that did arguably concern such an 
impression, there was nothmg to indicate that the statement was made when 
the victim "was perceiving the event or immediately thereafter." Id. at 437. 

In contrast, the diar>' was admitted, without objection, under either the 
theory that it was nonhearsay, or was an exception pursuant to Md. Rule 5-803 
(b) (3). Unlike the situation in Banks, and looking to Syed's own description 
describing the contents of the diar>', (App, Br. 60), the diary did not reflect any 
fear that Hae Lee believed Syed would harm her or kill her. The diary was 
relevant to establish circumstantially that Syed and Lee had been in a prior 
relationship. Thus, the diary was admissible as nonhearsay. 

64 



Additionally, Maryland Rule 5-803 (b) (3) provides for an exception 
from the hearsay rule for : 

5 [a] statement of the declarant's then existing state of mind, 

emotion, sensation, or physical condition (such as intent, plan, 

^ motive, design, mental feeling, pain, and bodily health), offered 

to prove the declarant's then existing condition . . . (emphasis 
added). 

Under this exception, the diary was admitted to show Hae Lee's then 
existing mental and emotional condition, i.e., that she and Syed were involved 
in an emotional relationship. In response, Syed asserts that the fact that the 
break up between Syed and Hae Lee was over reUgion, and that Hae had been 
dated another man was uncontested at trial. (App. Br. 61). Whether the issue 
was uncontested is of no moment. The question is whether the admission of 
the evidence was relevant. See Johnson, 332 Md. at 474 n.7 ("Evidence is 
relevant (and/or material) when it has a tendency to prove a proposition at 
issue in the case"). Thus, the diary was properly admitted at trial. 

Recognizing the preservation problem present here, Syed seeks to have 
this Court invoke plain error review. Plain error is "error which vitally affects 
a defendant's right to a fair and impartial trial."CooA' v. State, 118 Md. App. 
404, 411-12 (1997) (quoting State v. Daughton, 321 Md. 206, 211 (1990)), 
cert, denied, 349 Md. 234 ( 1 998). The appellate courts review only those very 
rare cases that are "'compelling, extraordinary, exceptional, or fundamental to 
assure the defendant a fair trial.'" Richmond v. State, 330 Md. 223, 236 (1993) 
(quoting State v. Hutchinson, 287 Md. 198, 203 (1980)). In deciding whether 
to review an instruction absent an objection, this Court typically considers the 
egregiousness of the error, the impact upon the defendant, the lawyerly 



65 



diligence, and the potential of the case to serve as a vehicle for interpreting and 
molding the law. Austin, 90 Md. App. at 268-72. 

Syed asserts that the diary was "overwhelming prejudicial" and 
contained information about the victim's "feelings, her love of her family, 
what other people said to her about her relationship with Appellant, and a 
plethora of other inflammatory material." (App. Br. 62). Most of the 
passages actually cited by Syed in his brief, (App. Br. 56-57), including the 
passage, "I'll probably kill myself if I lose him . . (App. Br. 62), are not 
prejudicial to Syed. Again, what this establishes is that there was a prior 
relationship between Syed and Hae Lee, a relationship which was established 
repeatedly throughout the trial by other evidence. (1/28/00, 140-41, 217-24; 
1/3 1/00, 25-27; 2/3/00, 85-88; 2/16/00, 298-305; 2/17/00, 6-14, 24-30, 34-57, 
119-21, 260-65; 2/23/00, 142), Thus, there is no issue with respect to 
admission of the diary in its entirety which warrants plain error review. 

CONCLUSION 

For the foregoing reasons, the State respectfully requests that the 
judgment of the Circuit Court for Baltimore City be affirmed. 

Respectfully submitted, 

J. JOSEPH CURRAN, JR. 
Attorney General of Maryland 

STE\'EN L. HOLCOMB 
Assistant Attorney General 

Counsel for Appellee 

HOLCOMBS\Syed.wpd 
Times New Roman 13 point 



66 



PERTINENT PROVISIONS 



Maryland Declaration of Rights, Article 21. Rights of accused; 
indictment; counsel; confrontation; speedy trial; impartial and 
unanimous jury. 

That in all criminal prosecutions, every man hath a right to be informed 
of the accusation against him; to have a copy of the Indictment, or charge, in 
due time (if required) to prepare for his defence; to be allowed counsel; to be 
confronted with the witnesses against him; to have process for his witnesses; 
to examine the witnesses for and against him on oath; and to a speedy trial by 
an impartial jury, without whose unanimous consent he ought not to be found 
guilty. 

(1981 RepLVol.) 

United States Constitution, Amendment VI - Right to speedy trial, 
witnesses, etc. 

In all criminal prosecutions, the accused shall enjoy the right to a 
speedy and public trial, by an impartial jury of the State and district wherein 
the crime shall have been committed, which district shall have been previously 
ascertained by law, and to be informed of the nature and cause of the 
accusation; to be confronted with the witnesses against him; to have 
compulsory process for obtaining witnesses in his favor, and to have the 
Assistance of Counsel for his defence. 

(1981 Repl. Vol.) 

Rule 4-242. Pleas. 

(a) Permitted pleas. A defendant may plead not guilty, guilty, or, 
with the consent of the court, nolo contendere. In addition to any of these 
pleas, the defendant may enter a plea of not criminally responsible by reason 
of insanity. 

s (b) Method of pleading, (\) Manner. A defendant may plead not 

guilty personally or by counsel on the record in open court or in writing. A 
^ defendant may plead guilty or nolo contendere personally on the record in 



67 



open court, except that a corporate defendant may plead guilty or nolo 
contendere by counsel or a corporate officer. A defendant may enter a plea of 
not criminally responsible by reason of insanity personally or by counsel and a 
the plea shall be in writing. 

(2) Time in the District Court. In District Court the defendant shall 
initially plead at or before the time the action is called for trial. 

(3) Time in Circuit Court. In circuit court the defendant shall 
initially plead within 15 days after the earlier of the appearance of counsel or 
the first appearance of the defendant before the circuit court pursuant to Rule 
4-213 (c). If a motion, demand for particulars, or other paper is filed that 
requires a ruling by the court or compliance by a party before the defendant 
pleads, the time for pleading shall be extended, without special order, to 15 
days after the ruling by the court or the compliance by a party. A plea of not 
criminally responsible by reason of insanity shall be entered at the time the 
defendant initially pleads, unless good cause is shown. 

(4) Failure or refusal to plead. If the defendant fails or refiises to 
plead as required by this section, the clerk or the court shall enter a plea of not 
guilty. 

(c) Plea of guilty. The court may accept a plea of guilty only after 
it determines, upon an examination of the defendant on the record in open 
court conducted by the court, the State's Attorney, the attorney for the 
defendant, or any combination thereof, that (1) the defendant is pleading 
voluntarily, with understanding of the nature of the charge and the 
consequences of the plea; and (2) there is a factual basis for the plea. In. 
addition, before accepting the plea, the court shall comply with section (e) of 
this Rule. The court may accept the plea of guilty even though the defendant 
does not admit guilt. Upon refusal to accept a plea of guilty, the court shall 
enter a plea of not guilty. 

(d) Plea of nolo contendere. A defendant may plead nolo 
contendere only with the consent of court. The court may require the 
defendant or counsel to provide information it deems necessary to enable it to 
determine whether or not it will consent. The court may accept the plea only 
after it determines, upon an examination of the defendant on the record in open 
court conducted by the court, the State's Attorney, the attomey for the 
defendant, or any combination thereof, that the defendant is pleading 
voluntarily with understanding of the nature of the charge and the 
consequences of the plea. In addition, before accepting the plea, the court 
shall comply with section (e) of this Rule. Following the acceptance of a plea 



68 



of nolo contendere, the court shall proceed to disposition as on a plea of guilty, 
but without finding a verdict of guilty. If the court refuses to accept a plea of 
nolo contendere, it shall call upon the defendant to plead anew. 

(e) Collateral consequences of a plea of guilty or nolo contendere. 
Before the court accepts a plea of guilty or nolo contendere, the court, the 
State's Attorney, the attorney for the defendant, or any combination thereof 
shall advise the defendant (1) that by entering the plea, if the defendant is not 
a United States citizen, the defendant may face additional consequences of 
deportation, detention, or ineligibility for citizenship and (2) that the defendant 
should consult with defense counsel if the defendant is represented and needs 
additional information concerning the potential consequences of the plea. The 
omission of advice concerning the collateral consequences of a plea does not 
itself mandate that the plea be declared invalid. 

(f) Plea to a degree. A defendant may plead not guilty to one 
degree and plead guilty to another degree of an offense which, bylaw, may be 
divided into degrees. 

(g) Withdrawal of plea. At any time before sentencing, the court 
may permit a defendant to withdraw a plea of guilty or nolo contendere when 
the withdrawal serves the interest of justice. After the imposition of sentence, 
on motion of a defendant filed within ten days, the court may set aside the 
judgment and permit the defendant to withdraw a plea of guilty or nolo 
contendere if the defendant establishes that the provisions of section (c) or (d) 
of this Rule were not complied with or there was a violation of a plea 
agreement entered into pursuant to Rule 4-243. The court shall hold a hearing 
on any timely motion to withdraw a plea of guilty or nolo contendere. 

(2001 Md. Rules) 

Rule 4-263. Discovery in circuit court. 

Discovery and inspection in circuit court shall be as follows: 
(a) Disclosure without request. Without the necessity of a request, 
the State's Attorney shall furnish to the defendant: 

(1) Any material or information tending to negate or mitigate the 
guilt or punishment of the defendant as to the offense charged; 

(2) Any relevant material or information regarding: (A) specific 
searches and seizures, wire taps or eavesdropping, (B) the acquisition of 
statements made by the defendant to a State agent that the State intends to use 



69 



at a hearing or trial, and (C) pretrial identification of the defendant by a 
witness for the State. 

(b) Disclosure upon request. Upon request of the defendant, the r 
State's Attorney shall: 

(1) Witnesses. Disclose to the defendant the name and address of 
each person then laiown whom the State intends to call as a wimess at the 
hearing or trial to prove its case in chief or to rebut alibi testimony; 

(2) Statements of the defendant. As to all statements made by the 
defendant to a State agent that the State intends to use at a hearing or trial, 
fiimish to the defendant, but not file unless the court so orders: (A) a copy of 
each written or recorded statement, and (B) the substance of each oral 
statement and a copy of all reports of each oral statement; 

(3) Statement of codefendants. As to all statements made by a 
codefendant to a State agent which the State intends to use at a joint hearing 
or trial, furnish to the defendant, but not file unless the court so orders: (A) a 
copy of each written or recorded statement, and (B) the substance of each oral 
statement and a copy of all reports of each oral statement; 

(4) Reports or statements of experts. Produce and permit the 
defendant to inspect and copy all written reports or statements made in 
connection with the action by each expert consulted by the State, including the 
results of any physical or mental examination, scientific test, experiment, or 
comparison, and ftimish the defendant with the substance of any such oral 
report and conclusion; 

(5) Evidence for use at trial Produce and permit the defendant to 
inspect, copy, and photograph any documents, computer-generated evidence 
as defined in Rule 2-504.3(a), recordings, photographs, or other tangible things 
that the State intends to use at the hearing or trial; 

(6) Property of the defendant. Produce and permit the defendant to 
inspect, copy, and photograph any item obtained from or belonging to the 
defendant, whether or not the State intends to use the item at the hearing or 
trial. 

(c) Matters not subject to discovery by the defendant. This Rule 
does not require the State to disclose: 

(1) Any documents to the extent that they contain the opinions, 

theories, conclusions, or other work product of the State's Attomey, or « 

(2) The identity of a confidential informant, so long as the failure to 
disclose the informant's identity does not infiinge a constitutional right of the 



70 



defendant and the State's Attorney does not intend to call the informant as a 
witness, or 

(3) Any other matter if the court finds that its disclosure would 
entail a substantial risk of harm to any person outweighing the interest in 
disclosure. 

(d) Discovery by the State. Upon the request of the State, the 
defendant shall: 

(1) As to the Person of the Defendant. Appear in a lineup for 
identification; speak for identification; be fingerprinted; pose for photographs 
not involving reenactment of a scene; try on articles of clothing; permit the 
taking of specimens of material under fingernails; permit the taking of samples 
of blood, hair, and other material involving no unreasonable intrusion upon the 
defendant's person; provide handwriting specimens; and submit to reasonable 
physical or mental examination; 

(2) Reports of experts. Produce and permit the State to inspect and 
copy all written reports made in connection with the action by each expert 
whom the defendant expects to call as a witness at the hearing or trial, 
including the results of any physical or mental examination, scientific test, 
experiment, or comparison, and fiimish the State with the substance of any 
such oral report and conclusion; 

(3) Alibi witnesses. Upon designation by the State of the time, 
place, and date of the alleged occurrence, furnish the name and address of each 
person other than the defendant whom the defendant intends to call as a 
witness to show that the defendant was not present at the time, place, and date 
designated by the State in its request. 

(4) Computer-generated evidence. Produce and permit the State to 
inspect and copy any computer-generated evidence as defined in Rule 2- 
504.3(a) that the defendant intends to use at the hearing or trial. 

(e) Time for discoveiy. The State's Attorney shall make disclosure 
pursuant to section (a) of this Rule within 25 days after the earlier of the 
appearance of counsel or the first appearance of the defendant before the court 
pursuant to Rule 4-2 13. Any request by the defendant for discovery pursuant 
to section (b) of this Rule, and any request by the State for discovery pursuant 
to section (d) of this Rule shall be made within 1 5 days after the earlier of the 
appearance of counsel or the first appearance of the defendant before the court 
pursuant to Rule 4-213. The party served with the request shall furnish the 
discovery within ten days after service. 



71 



(f) Motion to compel discovery. If discovery is not furnished as 
requested, a motion to compel discovery may be filed within ten days after 

receipt of inadequate discovery or after discovery should have been received, r 

whichever is earlier. The motion shall specifically describe the requested 

matters that have not been furnished. A response to the motion may be filed 

within five days after service of the motion. The court need not consider any 

motion to compel discovery unless the moving party has filed a certificate 

describing good faith attempts to discuss with the opposing party the 

resolution of the dispute and certifying that they are unable to reach agreement 

on the disputed issues. The certificate shall include the date, time, and 

circumstances of each discussion or attempted discussion. 

(g) Obligations of State 's Attorney. The obligations of the State's 
Attorney under this Rule extend to material and information in the possession 
or control of the State's Attorney and staff members and any others who have 
participated in the investigation or evaluation of the action and who either 
regularly report, or with reference to the particular action have reported, to the 
office of the State's Attorney. 

(h) Continuing duty to disclose. A party who has responded to a 
request or order for discovery and who obtains further material information 
shall supplement the response promptly. 

(i) Protective orders. On motion and for good cause shown, the 
court may order that specified disclosures be restricted. If at any time during 
the proceedings the court finds that a party has failed to comply with this Rule 
or an order issued pursuant to this Rule, the court may order that party to 
permit the discovery of the matters not previously disclosed, strike the 
testimony to which the undisclosed matter relates, grant a reasonable 
continuance, prohibit the party from introducing in evidence the matter not 
disclosed, grant a mistrial, or enter any other order appropriate under the 
circumstances. 

(2001 Md. Rules) 

Rule 4-323. Method of making objections. 

(a) Objections to evidence. An objection to the admission of 
evidence shall be made at the time the evidence is offered or as soon thereafter 
as the grounds for objection become apparent. Otherwise, the objection is 
waived. The grounds for the objection need not be stated unless the court, at 



72 



the request of a party or on its own initiative, so directs. The court shall rule 
upon the objection promptly. When the relevancy of evidence depends upon 
the fulfillment of a condition of fact, the court may admit the evidence subject 
to the introduction of additional evidence sufficient to support a finding of the 
jfulfillment of the condition. The objection is waived unless, at some time 
before final argument in a jury trial or before the entry of judgment in a court 
trial, the objecting party moves to strike the evidence on the ground that the 
condition was not fulfilled. 

(b) Continuing objections to evidence. At the request of a party or 
on its own initiative, the court may grant a continuing objection to a line of 
questions by an opposing party. For purposes of review by the trial court or 
on appeal, the continuing objection is effective only as to questions clearly 
within its scope. 

(c) Objection to other rulings or orders. For purposes of review by 
the trial court or on appeal of any other ruling or order, it is sufficient that a 
party, at the time the ruling or order is made or sought, makes known to the 
court the action that the party desires the court to take or the objection to the 
action of the court. The grounds for the objection need not be stated unless 
these rules expressly provide otherwise or the court so directs. If a party has 
no opportunity to object to a ruling or order at the time it is made, the absence 
of an objection at that time does not constitute a waiver of the objection. 

(d) Formal exceptions unnecessary. A formal exception to a ruling 
or order of the court is not necessary. 

(2001 Md. Rules) 

Rule 5-403. Exclusion of relevant evidence on grounds of prejudice, 
confusion, or waste of time. 

Although relevant, evidence may be excluded if its probative value is 
substantially outweighed by the danger of unfair prejudice, confusion of the 
issues, or misleading the jury, or by considerations of undue delay, waste of 
time, or needless presentation of cumulative evidence. 

(2001 Md. Rules) 



73 



Rule 5-801. Definitions. 



The following definitions apply under this Chapter; r 

(a) Statement. A "statement" is (1) an oral or written assertion or 
(2) nonverbal conduct of a person, if it is intended by the person as an 
assertion. 

(b) Declarant A "declarant" is a person who makes a statement. 

(c) Hearsay. "Hearsay" is a statement, other than one made by the 
declarant while testifying at the trial or hearing, offered in evidence to prove 
the truth of the matter asserted. 

(2001 Md. Rules) 

Rule 5-803. Hearsay exceptions: Unavailability of declarant not required. 

The following are not excluded by the hearsay rule, even though the 
declarant is available as a wimess: 

(a) Statement by party-opponent. A statement that is offered against 
a paTt>' and is: 

(1) The party's own statement, in either an individual or 
representative capacity; 

(2) A statement of which the party has manifested an adoption or 
belief in its truth; 

(3) A statement by a person authorized by the party to make a 
statement concerning the subject; 

(4) A statement by the part>''s agent or employee made during the 
agency or employment relationship concerning a matter within the scope of the 
agency or employment; or 

(5) A statement by a coconspirator of the party during the course 
and in furtherance of the conspiracy, 

(b) Other exceptions. (1) Present sense impression. A statement 
describing or explaining an event or condition made while the declarant was 
perceiving the event or condition, or immediately thereafter. 

(2) Excited utterance, A statement relating to a startling event or 
condition made while the declarant was under the stress of excitement caused 
by the event or condition. 



74 



(3) Then existing mental, emotional, or physical condition. A 
statement of the declarant's then existing state of mind, emotion, sensation, or 
physical condition (such as intent, plan, motive, design, mental feeling, pain, 
and bodily health), offered to prove the declarant's then existing condition or 
the declarant' s futureaction, but not including a statement of memory or belief 
to prove the fact remembered or believed unless it relates to the execution, 
revocation, identification, or terms of declarant's will. 

(4) Statements for purposes of medical diagnosis or treatment. 
Statements made for purposes of medical treatment or medical diagnosis in 
contemplation of treatment and describing medical history, or past or present 
symptoms , pain, or sensation, or the inception or general character of the cause 
or external sources thereof insofar as reasonably pertinent to treatment or 
diagnosis in contemplation of treatment. 

(5) Recorded recollection. See Rule 5-802. 1(e) for recorded 
recollection. 

(6) Records of regularly conducted business activity. A 
memorandum, report, record, or data compilation of acts, events, conditions, 
opinions, or diagnoses if (A) it was made at or near the time of the act, event, 
or condition, or the rendition of the diagnosis, (B) it was made by a person 
with knowledge or from information transmitted by a person with knowledge, 
(C) it was made and kept in the course of a regularly conducted business 
activity, and (D) the regular practice of that business was to make and keep the 
memorandum, report, record, or data compilation. A record of this kind may 
be excluded if the source of information or the method or circumstances of the 
preparation of the record indicate that the information in the record lacks 
trustworthiness. In this paragraph, "business" includes business, institution, 
association, profession, occupation, and calling of every kind, whether or not 
conducted for profit. 

(7) Absence of entry in records kept in accordance with subsection 
(b)(6). Unless the circumstances indicate a lack of trustworthiness, evidence 
that a diligent search disclosed that a matter is not included in the memoranda, 
reports, records, or data compilations kept in accordance with subsection 
(b)( 6), when offered to prove the nonoccurrence or nonexistence of the matter, 
if the matter was of a kind about which a memorandum, report, record, or data 
compilation was regularly made and preserved. 

(8) Public records and reports. (A) Except as otherwise provided in 
this paragraph, a memorandum, report, record, statement, or data compilation 
made by a public agency setting forth 



75 



(i) the activities of the agency; 

(ii) matters observed pursuant to a duty imposed by law, as to which 
matters there was a duty to report; or 

(iii) in civil actions and when offered against the State in criminal 
actions, factual findings resulting from an investigation made pursuant to 
authority granted by law. 

(B) A record offered pursuant to paragraph (A) may be excluded if 
the source of information or the method or circumstance of the preparation of 
the record indicate that the record or the information in the record lacks 
trustworthiness. 

(C) A record of matters observed by a law enforcement person is not 
admissible under this paragraph when offered against an accused in a criminal 
action. 

(D) This paragraph does not supersede specific statutory provisions 
regarding the admissibility of particular pubhc records. 

(9) Records of vital statistics. Except as otherwise provided by 
statute, records or data compilations of births, fetal deaths, deaths, or 
marriages, if the report thereof was made to a public office pursuant to 
requirements of law. 

(10) Absence of public record or entry. Unless the circumstances 
indicate a lack of trustworthiness, evidence in the form of testimony or a 
certification in accordance with Rule 5-902 that a diligent search has failed to 
disclose a record, report, statement, or data compilation made by a public 
agency, or an entry therein, when offered to prove the absence of such a record 
or entry or the nonoccurrence or nonexistence of a matter about which a record 
was regularly made and preser\'ed by the public agency. 

(11) Records of religious organizations. Statements of births, 
marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or 
marriage, or other similar facts of personal or family history, contained in a 
regularly kept record of a religious organization. 

(12) Marriage, baptismal, and similar certificates. Statements of fact 
contained in a certificate that the maker performed a marriage or other 
ceremony or administered a sacrament, made by a member of the clergy, 
public official, or other person authorized by the rules or practices of a 
religious organization or by law to perform the act certified, and purporting to 
have been issued at the time of the act or within a reasonable time thereafter. 

(13) Family records. Statements offact concerning personal or family 
history contained in family Bibles, genealogies, charts, engravings on rings, 



76 



inscriptions on family portraits, engravings on urns, crypts, or tombstones or 
the like. 

(14) Records of documents affecting an interest in property. The 
^ record of a document purporting to establish or affect an interest in property, 

as proof of the content of the original recorded document and its execution and 
* delivery by each person by whom it purports to have been executed, if the 

record is a record of a public office and a statute authorizes the recording of 
documents of that kind in that office. 

(15) Statements in documents affecting an interest in property. A 
statement contained in a document purporting to establish or affect an interest 
in property if the matter stated was relevant to the purpose of the document, 
unless dealings with the property since the document was made have been 
inconsistent with the truth of the statement or the purport of the document or 
the circumstances otherwise indicate lack of trustworthiness. 

(16) Statements in ancient documents. Statements in a document in 
existence twenty years or more, the authenticity of which is established, unless 
the circumstances indicate lack of trustworthiness. 

( 1 7) Market reports and published compilations. Market quotations, 
tabulations, lists, directories, and other published compilations, generally used 
and reasonably relied upon by the public or by persons in particular 
occupations. 

(18) Learned treatises. To the extent called to the attention of an 
expert witness upon cross-examination or relied upon by the expert witness in 
direct examination, statements contained in a published treatise, periodical, or 
pamphlet on a subject of history, medicine, or other science or art, established 
as a reliable authority by the testimony or admission of the witness, by other 
expert testimony, or by judicial notice. If admitted, the statements may be read 
into evidence but may not be received as exhibits. 

(19) Reputation concerning personal or family history. Reputation, 
prior to the controversy before the court, among members of a person's family 
by blood, adoption, or marriage, or among a person's associates, or in the 
community, concerning a person's birth, adoption, marriage, divorce, death, 
or other similar fact of persona! or family history. 

(20) Reputation concerning boundaries or general history. 
(A) Reputation in a community, prior to the controversy before the court, as 

^ to boundaries of, interests in, or customs affecting lands in the community. 

(B) Reputation as to events of general history important to the 
„ community, state, or nation where the historical events occurred. 



77 



(21) Reputation as to character. Reputation of a person's character 
among associates or in the community. 

(22) Judgment of previous conviction. Evidence of a final judgment 
entered after a trial or upon a plea of guilty (but not upon a plea of nolo 
contendere) that adjudges a person guilty of a crime punishable by death or 
imprisonment in excess of one year offered to prove any fact essential to 
sustain the judgment. In criminal cases, the State may not offer evidence of 
a judgment against persons other than the accused, except for purposes of 
impeachment. The pendency of an appeal may be shown but does not 
preclude admissibility. 

(23) Judgment as to personal, family, or general history, or 
boundaries. Judgments as proof of matters of personal, family, or general 
history, or boundaries, essential to the judgment, if the mater would be 
provable by evidence of reputation under subsections (19) or (20). 

(24) Other exceptions. Under exceptional circumstances, the 
following are not excluded by the hearsay rule, even though the declarant is 
available as a wimess: A statement not specifically covered by any of the 
foregoing exceptions but having equivalent circumstantial guarantees of 
trustworthiness, if the court determines that (A) the statement is offered as 
evidence of a material fact; (B) the statement is more probative on the point for 
which it is offered than any other evidence which the proponent can procure 
through reasonable efforts; and (C) the general purposes of these rules and the 
interests of justice will best be served by admission of the statement into 
evidence. A statement may not be admitted under this exception unless the 
proponent of it makes known to the adverse part}', sufficiently in advance of 
the trial or hearing to provide the adverse part>' with a fair opportunity to 
prepare to meet it, the intention to offer the statement and the particulars of it, 
including the name and address of the declarant. 

(2001 iMd. Rules) 



78